Opinion
28285.
DECIDED JULY 5, 1940.
Action for damages; from Savannah city court — Judge MacDonell. December 19, 1939.
Oliver Oliver, C. L. Cowart, for plaintiff.
Abrahams, Bouhan, Atkinson Lawrence, for defendants.
The petition set out a cause of action against both defendants, and the court erred in sustaining the demurrers.
DECIDED JULY 5, 1940.
Maudie Lee Bryant brought suit against the Atlantic Coast Line Railroad Company and Charles A. Griner, to recover damages for the death of her husband, Lonnie Preston Bryant, which she alleged was caused by the joint negligence of the defendants. In the petition it was substantially alleged, that on April 19, 1939, her husband was employed by H. G. Smith, a State highway contractor, as a night watchman on the State roadway construction at Central Junction in Chatham County; that Smith had a contract for constructing an overpass State highway bridge on State Highway No. 80, and across and over the main line and switching tracks of the defendant railroad, the Southern Railway Company, the Seaboard Air-Line Railway Company, the Savannah and Atlanta Railway Company, and the Central of Georgia Railway Company; that on the night of April 19, 1939, a train of the defendant was switching freight-cars at this junction; that the defendant Griner, an employee of the defendant railroad, had charge, direction, and control of this train and all its employees, and was designated as the engine foreman; that the engine of the defendant which was pulling this train was being operated by J. L. Sherrod, an engineer of the defendant; that the engine was near the middle of a train of freight-cars with about four cars in front, which had to be placed on the tracks of the Savannah Atlanta Railway, and about six cars in the rear, which had to be placed on the tracks of the Southern Railway; that this engine, under the direction of Griner, proceeded northwardly on a joint line of the defendant and the Central of Georgia Railway Company, and then was switched from that track on to the tracks of the Savannah Atlanta Railway, where the four cars for that railway were placed; that it was about 10:30 p. m. when the train went on to the Savannah Atlanta Railway tracks; that the switching operation into and out of these tracks took about twenty-five minutes, and when completed the engine, under the direction of the defendant Griner, was backed southwardly on to the joint track, and, while so backing, was approaching the grade crossing on highway No. 80; that as this train was backing toward the crossing the plaintiff's husband was engaged in flagging the crossing so as to prevent automobiles traveling upon the highway from coming on to the crossing; that in so flagging he was preventing automobiles from being struck by the switching train which was backing toward the crossing, and also preventing automobiles from being struck by a passenger-train of the defendant railroad, which was proceeding from the Union Station in Savannah northwardly (in the opposite direction from the backing switching train) toward the City of Charleston on a mainline track of the defendant about ten feet east of this joint track, so that as he stepped off of this main-line track to permit the passenger-train to pass he backed on to such joint track, not knowing when he did this that his life was imperiled by the approach of the switching engine and cars, and he was caught, crushed, and killed by the first of this string of cars; that his body was dragged, crushed, and mutilated for a distance of about one hundred feet, when his body was caught in a switch frog of the joint track which connected the joint track with the main line of the defendant railroad, and remained there until about midnight when his body was found by a watchman who was supposed to "succeed" the plaintiff's husband in watching the crossing; that it was the duty of the defendant railroad company, through Griner, foreman in charge of the backing train, to place himself, or some other employee of the company designated by him, on the rear of the freight-car as a watchman, where, had the watchman been so placed, he could have signaled the engineer to stop backing the engine and cars before the car struck the plaintiff's husband, and could have sounded a warning to her husband of his perilous position, but, instead, Griner had no one on the end of the backing car, and was himself inside the freight-car next to the engine, and thereby Griner failed in the performance of the duty which he owed to the defendant railroad and to the plaintiff's husband to protect him from the peril of being caught on the crossing by the backing of this train; that it was the further duty of the defendant railroad, through Griner, not to back the engine or cars upon and across this grade crossing when the passenger-train of the defendant was approaching and passing over the grade crossing from the opposite direction, which duty the railroad company through Griner, did not perform; that the plaintiff's husband at the time he was killed was in the exercise of all due, ordinary, and reasonable care; that the noise made by the passenger-train while approaching and rattling over the switch frog about one hundred feet south of the crossing and over the crossing itself prevented the plaintiff's husband from hearing any noise made by the slow approach of the engine and freight-cars from the opposite direction, and the headlights of the engine of the passenger-train blinded him and prevented him from seeing the backing freight-cars as they approached the crossing, and thereby he was unable either to hear or to see the slow approach of the freight-cars immediately before he was caught and killed; and that the death of the plaintiff's husband was caused entirely through the negligence of the railroad company and Griner, as joint tort-feasors, in not having Griner or some other employee of the company designated by Griner as a watchman on the rear of the freight-car as it approached the grade crossing, to signal the engineer to stop the train, or to sound a warning to the plaintiff's husband of his perilous position, and in backing the freight-car toward, upon, and over the grade crossing while the passenger-train of the company was proceeding toward and over such crossing from the opposite direction.
The defendants' general demurrers to the petition were sustained, and the action was dismissed. To this judgment the plaintiff excepted.
It is alleged that the plaintiff's husband was employed by a highway contractor as a crossing watchman, and that his duties consisted in maintaining a lookout for trains passing over the crossing where the defendant's main-line railroad tracks and a switching track, maintained jointly by the defendant and another railroad company, and other railway tracks cross a public highway, in order to warn persons traveling on the highway of approaching trains; that on the night the plaintiff's husband met his death a passenger-train of the defendant was approaching on the main-line railway of the defendant, and the plaintiff's husband was standing in the highway between this main-line and the joint switching track, warning travelers on the highway of the approach of the passenger-train, and that as the passenger-train came upon the crossing the plaintiff's husband was forced to step back so as to avoid being near the moving passenger-train, and stepped back upon the joint switching track above referred to. The petition shows that the switching engine with some cars had previously passed over the crossing on this joint track, and had done some switching some distance below the crossing; that as the plaintiff's husband stepped back upon the joint track in order to avoid the passenger-train the switching engine, pushing several cars, backed upon the crossing and ran over and killed him; that this switching engine and cars slowly and noiselessly approached the crossing at night, without sounding a warning, and without having a flagman or other trainman stationed thereon in a position to enable him to warn the plaintiff's husband and to signal the engineer to stop the train; and that the plaintiff's husband was not aware of and could not hear the approaching engine and cars, because his attention was directed to the performance of his duties at the crossing, and because of the noise made by the passenger-train as it passed over the crossing and a near-by switch frog. It appeared from the allegations of the petition that the defendant railroad company and the defendant engine foreman were negligent, which negligence was the direct and proximate cause of the death of the plaintiff's husband, in permitting the switching engine to back over the crossing, pushing the freight-cars, when the passenger-train of the defendant railroad company was crossing from the opposite direction, without giving warning of its approach to the plaintiff's husband, who was in a perilous position, engaged in performing his duties, without having an employee of the railroad company stationed on such switching train for the purpose of signaling the engineer to stop the train and giving warning to persons on the crossing of its approach.
The allegations of the petition do not affirmatively show, as contended by the defendant, that the death of the plaintiff's husband was the result of his own negligence or failure to exercise ordinary care. The determination of this question, like questions of negligence, proximate cause, etc., is ordinarily for the jury. Brown v. Savannah Electric Power Co., 46 Ga. App. 393, 397 ( 167 S.E. 773). The petition sufficiently charged actionable negligence on the part of the defendant, and the circumstances attending the death of the plaintiff's husband, as alleged in the petition, do not show as a matter of law that the plaintiff's husband could, by the exercise of ordinary care on his part, have avoided the consequences to himself of the defendant's negligence. See Barrett v. L. N. R. Co., 137 Ga. 572 ( 73 S.E. 837). The duty to exercise ordinary care to avoid the consequences of another's negligence does not arise until such negligence becomes apparent, or an ordinary person would apprehend its existence, and this is a jury question. S. A. L. Ry. Co. v. Blackwell, 16 Ga. App. 504 ( 85 S.E. 686); W. A. Ry. v. Ferguson, 113 Ga. 708 ( 39 S.E. 306, 54 L.R.A. 802). The facts involved in Barrett v. L. N. R. Co., supra, show an analogous situation to the facts made by the allegations of the petition in the case at bar, and the decision of the Supreme Court therein, reversing the dismissal of the plaintiff's petition on general demurrer, is controlling on this court. The cases referred to by counsel for the defendants in their brief are not analogous to the case at bar, and are not controlling. The plaintiff's husband was not a watchman employed by the defendant railroad company, and that company owed to him the same duties it did to any other person rightfully on the crossing. The case of Thompson v. Southern Ry. Co., 134 Ga. 371 ( 67 S.E. 939), is distinguished in Barrett v. L. N. R. Co., supra. The petition set out a cause of action against both defendants, and the judge erred in sustaining the general demurrers and in dismissing the action.
Judgment reversed. Sutton and Felton, JJ., concur.