Opinion
35153.
DECIDED JUNE 2, 1954.
Damages. Before Judge Thomas. Coffee Superior Court. February 5, 1954.
Matthews Hendrix, R. A. Moore, B. G. Oberry, for plaintiff in error.
Ewing Farrar, contra.
1. Whether the defendant's engineer was negligent in not slowing down and having the train under control as it approached the crossing, under the circumstances alleged in the petition, is a question for a jury's determination, and the court did not err in overruling the general demurrer to the petition.
2. Since the defendant introduced evidence tending to rebut the negligence alleged against it and introduced material facts concerning the collision, the court erred in charging the principle set out in Code § 94-1108.
3. The acts and omissions of the defendant, alleged by the plaintiff to constitute negligence per se, did not amount to negligence per se, and the court erred in overruling a special demurrer pointing out such defect.
DECIDED JUNE 2, 1954.
M. A. Parker sued Atlantic Coast Line Railroad Company for damages resulting from a collision between his automobile and the defendant's train, allegedly caused by the defendant's negligence. In substance the petition alleged as follows: that the defendant owns and operates a line of steam and Diesel railroad which extends through Coffee County, Georgia, approaching the county from the east and leaving the county on the west; that said line of railroad crosses a certain country unpaved public road, said road being the first public road to be crossed by the railroad after leaving the crossing at Seventeen Mile Creek when going from east to west along said railroad; that on June 26, 1952, the plaintiff, while driving his automobile on said road, attempted to cross the defendant's railroad where it crosses the public road aforementioned and, in attempting so to cross, his automobile stalled and stopped on the crossing; that a west-bound train operated by the defendant's servants struck and completely demolished the automobile; that the plaintiff's damages were proximately caused by the negligence of the defendant, its servants, agents, and employees in charge of said train, as follows: in that the servants, agents, and employees of the defendant who were operating said train at said time and place failed to give any notice whatsoever of the approach of the train by blowing any crossing signal as required by law and failed to signal the approach of said train in any manner whatsoever, and did not keep a constant and vigilant lookout along the track, and did not exercise due care and control of the movement of the train so as to avoid injury to persons or property which might be on said crossing and using said highway, all of which duties are required by the laws of the State of Georgia; that the defendant and its said servants, agents, and employees knew or by the exercise of ordinary diligence could and should have known that the highway crossing the railroad at said location was commonly and frequently used by the public, and they approached the crossing with the locomotive at a rate of speed of not less than fifty miles per hour, which was a speed that made it impossible for the defendant and its servants to control and stop the movement of the train as required by law; that the operation of the locomotive at such a speed was hazardous to persons and property using said highway at said location, and was in total disregard for the safety of persons and property on the highway at the crossing and amounts to negligence per se; that the defendant and its servants were negligent and careless in running and driving the locomotive at a speed of at least fifty miles per hour on the said track at a place where a blind curve is situated approximately 500 feet east of said crossing; that they were negligent and careless in maintaining said speed at this blind curve, in that they were unable to control and stop the movement of the train after passing the curve going west and before reaching the crossing, and thereby showed total disregard for the safety of persons and property using the highway at the crossing; that the unpaved public road is a public highway and the place where the collision occurred is heavily traveled by farmers and farm families in going to and from a large farm community to the City of Douglas, Georgia, and it was the duty of the defendant and its servants to have anticipated the presence of travelers crossing said railroad crossing at the point indicated, and to have used due care in avoiding injury and damage to such persons and property using the highway; that the defendant was careless and negligent, in that its engineer or other employees did not blow the whistle and constantly toll the bell of the engine as the train approached the public crossing; its employees did not maintain a constant and vigilant lookout along the track ahead of its engine; through its servants and employees it caused the train to approach and run upon the crossing at an excessive rate of speed, under the circumstances, to wit, at the rate of not less than 50 miles per hour; it did not exercise due care in controlling the movement of its train so as to avoid doing injury to persons or property which might be on said public highway; it did not operate its locomotive at a safe speed on said track east of the crossing where a blind curve was situated approximately 500 feet before reaching the crossing.
The defendant filed general and special demurrers to the petition, which were overruled and the defendant excepted pendente lite. On the trial the jury found for the plaintiff. The defendant's amended motion for new trial was denied, and it excepts to that judgment and assigns error on its exceptions pendente lite.
1. The court did not err in overruling the general demurrer. While there is no statute requiring an engineer to slow down his train and to have it under control at public crossings, a jury may determine that under the circumstances in a particular case ordinary care would require such action; and in the instant case it would be a question for a jury whether the defendant was negligent in operating its train at 50 miles per hour upon approaching a much-traveled public crossing where a curve prevented observation of the crossing by the train's crew until the train was within approximately 500 feet thereof. Atlantic Coast Line R. Co. v. Bradshaw, 34 Ga. App. 360 (1) ( 129 S.E. 304); Georgia Northern Ry. Co. v. Rollins, 62 Ga. App. 138 (1) ( 8 S.E.2d 114); Central of Georgia Ry. Co. v. Sharpe, 83 Ga. App. 12, 21 ( 62 S.E.2d 427). The contention that the plaintiff is barred by his own negligence in driving a defective automobile which stalled on the tracks is without merit. There is nothing in the petition to show that the automobile was defective, or if defective that the plaintiff knew or should have known of the defect.
2. The court erred in charging in effect Code § 94-1108, which provides: "In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the companies in reference to such injury." The defendant introduced evidence sufficient to authorize a finding of its exercise of ordinary care under the circumstances and introduced material facts connected with the collision; therefore the principle set out in Code § 94-1108 had no place in the case, and the court erred in charging thereon. Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593 ( 160 S.E. 789); Atlantic Coast Line R. Co. v. Rowe, 83 Ga. App. 540 ( 64 S.E.2d 216); Central of Ga. Ry. Co. v. Cooper, 45 Ga. App. 806, 807 (4) ( 165 S.E. 858).
3. It is contended that the court erred in overruling a special demurrer to the following allegation: "The operation of said locomotive at such a speed was hazardous to persons and property using said highway at said location, and was in total disregard for the safety of persons and property on said highway at said crossing and amounts to negligence per se." The acts alleged did not amount to negligence per se, and the court erred in overruling the special demurrer as to that portion of the allegation designating the acts or omissions as being negligence per se. Montgomery v. Southern Ry. Co., 78 Ga. App. 370, 374 ( 51 S.E.2d 66).
The court did not err in overruling the general demurrer to the petition.
The court erred in overruling the special demurrer treated in the opinion and in denying the amended motion for new trial.
Judgments affirmed in part and reversed in part. Quillian and Nicholas, JJ., concur.