Opinion
42536.
ARGUED JANUARY 4, 1967.
DECIDED FEBRUARY 20, 1967.
Action for damages. Jenkins Superior Court. Before Judge Usher.
Milton A. Carlton, for appellant.
George W. Fryhofer, Thomas M. Odom, O. Frank Brant, for appellee.
The petition, construed most strongly against the pleader and in the light of its omissions as well as its averments, showed that the plaintiff's recovery was barred by her decedent's negligence; therefore, the overruling of the general demurrer thereto was error.
ARGUED JANUARY 4, 1967 — DECIDED FEBRUARY 20, 1967.
In Mrs. Jean Hurst's action for damages for the tortious death of her husband, against the Central of Georgia Railway Company, the petition alleged. "1. The defendant, Central of Georgia Railway Company, hereinafter referred to as the railroad, is a corporation organized and existing under the laws of the State of Georgia, and has an office, agent and a place of doing business in Jenkins County, Georgia. 2. That on or about November 28, 1965 at approximately 10:42 o'clock p. m., plaintiff's husband, Herschel Hurst, Jr., was operating a 1957 Pontiac automobile proceeding south on U.S. Highway 17 in Jenkins County, Georgia toward the intersection of the tracks of the defendant, at a place known as Scarboro. 3. That said highway as it proceeds south approaching said intersection runs parallel with said railroad tracks until it begins to curve left and eastwardly at a point approximately 900 feet west of the crossing. 4. That said highway curve ends approximately 200 feet prior to reaching said crossing and the road is straight for the last two hundred feet traveled before reaching the crossing. 5. That said highway runs approximately from west to east and the railroad tracks leave said intersection northward at an angle of north 10 degrees west and leave said intersection southward at an angle of south 10 degrees east, the railroad tracks and the highway being straight lines at the point of intersection. 6. That a double yellow line is located on the highway prior to reaching said intersection and said double line ends 152 feet prior to reaching said intersection approaching from the west. 7. That an electric signal light for eastbound traffic approaching from the west is located 8 feet of the edge of said highway and 12 feet west of the west rail of the tracks. 8. That said light is located at a point 7 feet 10 inches above ground level. 9. That an electric signal light for the westbound traffic is located on the east side of said crossing at a point 8 feet north of the north edge of said highway and 10 feet east of the east rail. 10. That the signal light on the east side of said crossing faces east and its lights would be totally blocked and obscured to a person approaching the crossing from the west when a train was passing over the crossing. 11. That a train on the crossing would also block a view of said lights and the crossbucks by one approaching from the west. 12. That said electric signal lights contain hoods with a top thereof which tended to concentrate the light straight out in front of the beam or hood. 13. That a vehicle traveling east towards said intersection from the west behind another vehicle would not be able to see said signal lights, if said signal lights were operating and working, by reason of the fact that the preceding vehicle would block the view of the lights. 14. That at said time and place as plaintiff's husband approached said intersection, he was following another vehicle operated by Mrs. Leville Waters, Jr. 15. That plaintiff's husband approached the Waters' vehicle, and plaintiff's husband dimmed his lights. 16. That as plaintiff's husband reached the straight-away part of the highway approaching said crossing approximately 152 feet west of said tracks, plaintiff's husband proceeded to pass the vehicle being operated by Mrs. Waters. 17. That the preceding vehicle being driven by Mrs. Waters blocked the view of plaintiff's husband of the light, and if said signal lights were in operation and working it was impossible for plaintiff's husband to have seen them, his view being obstructed by said preceding vehicle. 18. That when plaintiff's husband got approximately 100 feet from said crossing, he saw said train and applied his brakes but was unable to stop and ran into the side of the train. 19. That the exercise of ordinary care required the railroad to anticipate that a preceding vehicle would block the view of the following vehicle of the electric signal lights and the exercise of ordinary care required the railroad to erect said signal lights higher or erect additional lights higher in the air which would have been visible. 20. That the exercise of ordinary care required the railroad to have a flashing electric light on the left-hand side of said crossing which would not have been obscured by a preceding vehicle. 21. That the exercise of ordinary care required the railroad to have reflectors on the side of the cars of the train crossing the tracks. 22. That the exercise of ordinary care required the railroad to have a moving gate across said crossing containing light on the end of said gate projecting into the left or westbound lane which would have been visible to plaintiff's husband. 23. That plaintiff's husband used said highway infrequently and was not familiar with the crossing. 24. That the view of the plaintiff's husband of the signs warning of the approach of said crossing, and the electric signal lights was completely and totally obscured by the vehicle ahead of him until he was so close to the train as to be unable to stop. 25. That plaintiff's husband was exercising ordinary care and diligence and traveling at the speed of approximately fifty miles per hour and did everything possible to extract himself from the trap created by the defendant's negligence. 26. That said crossing is heavily traveled by automobiles and is a public crossing and was heavily traveled by the public at night. 27. Under the circumstances existing with the view being blocked by the preceding automobile, there was no guard or warning or light or sign to apprise plaintiff's husband of the crossing. . . 33. That all of the aforesaid damage and injury was directly and proximately caused by the negligence of the railroad as herein set out: (a) In maintaining a dangerous, defective, hazardous and unsafe railroad crossing; (b) In maintaining its electric signal lights so close to the ground as not to be visible by a vehicle having another vehicle preceding it; (c) In failing to maintain a black and white striped gate which would come down across said highway; (d) In failing to erect and maintain a flashing electric signal light on the left-hand side of said crossing for eastbound traffic approaching said crossing from the west which said light on the left would not have been obscured by a preceding vehicle or when passing a preceding vehicle; (e) In failing to have reflectors on the side of the boxcars which would have reflected back the light and indicated the presence of a moving train."
The defendant's general demurrer was overruled and it appealed from that judgment.
A petition, when considered on general demurrer, must be construed most strongly against the pleader and in the light of its omissions as well as its averments. Henderson v. Baird, 100 Ga. App. 627, 632 (3) ( 112 S.E.2d 221), and cit.
The appellee's primary basis for recovery rests on the ground that her decedent's view of the admitted warning signs was blocked by the preceding vehicle he was passing. The allegations to the effect that it would have been impossible for the decedent to see the signal light facing him if it was operating, in the absence of a positive allegation that it was not operating, must be construed to mean that it was operating. In the absence of any allegation of a hill, the terrain involved must be presumed to be level. In the absence of any allegation that the preceding vehicle was one of extraordinary width or height, such as a truck, it must be presumed to have been an ordinary standard passenger automobile or smaller. Since it is alleged that the roadway is straight for approximately 200 feet approaching the tracks and that the decedent driver did not commence passing the preceding vehicle until he reached the end of the double yellow centerline of the roadway, 152 feet from the tracks, it affirmatively appears that he drove a distance of approximately 50 feet in the right-hand lane along a level, straight roadway, alongside of which, and 8 feet from the roadway, was the 7 feet 10 inches high electric light signal (which was operating), preceded by various other sign or signs, which were alluded to but not described. There appears no reason why the plaintiff's decedent, in the exercise of due care, or even with his headlights off, could not have observed at least the electric light signal under these circumstances, unless he was following the preceding vehicle too closely to have seen it. Even if we do not take judicial notice of the fact that a light of this type is usually placed at approximately the alleged height, in the absence of any allegation that the height or location is other than the accepted standard used, it must be assumed to be a standard installation.
Even beyond this, however, the petition shows such negligence as would subject it to the general demurrer. It is alleged that the decedent dimmed his lights as he approached the preceding vehicle from the rear, as is required by Code Ann. § 68-1714 (c) (Ga. L. 1953, Nov. Sess., pp. 556, 610; Ga. L. 1955, Ex. Sess. pp. 25, 26), but it is not alleged that he used his high beam lights "when engaged in the act of overtaking and passing," as the above Code section also requires. It thus appears that he drove the distance of at least 152 feet with his low beam lights on while passing, which was negligence per se. Although it is alleged that the defendant was negligent in not having a black and white striped movable gate in the left lane, it is not alleged that the decedent could have seen such a warning in time to have stopped. Indeed, it could almost be said as a matter of law that he could not have stopped, with the limited vision afforded by his dimmed headlights, plus the fact that it is alleged that he could not stop even within 100 feet of the train when he finally saw it. Code Ann. § 68-1637 (b, 2) (Ga. L. 1953, Nov. Sess., pp. 556, 583) prohibits the driving of any vehicle to the left side of the roadway when approaching within 100 feet of any railroad grade crossing. Although it is alleged that the decedent was not aware of the crossing, he was chargeable with this knowledge by his negligence in failing to observe the signal light, as has been noted. Additionally, it is alleged that decedent had traveled this road "infrequently," which must be construed as at least more than once. While this would not charge him with knowledge of the exact location of the crossing, it would at least show that he knew of the existence of a crossing, making his failure to observe the sign(s) and/or the signal light and his passing with low beam headlights even greater negligence.
The allegations of the petition show, as a matter of law, that the plaintiff's decedent was guilty of such negligence as to bar the plaintiff's recovery; therefore, the court erred in its judgment overruling the defendant's general demurrer to the petition. Judgment reversed. Eberhardt, J., concurs. Hall, J., concurs in the judgment.
I agree with Judge Felton, and in addition suggest that for other reasons also the petition does not set out a cause of action. The charge that the railroad was negligent in "maintaining a dangerous, defective, hazardous and unsafe railroad crossing," is a general allegation which must yield to the specific allegations. Palmer Brick Co. v. Chenall, 119 Ga. 837 (6) ( 47 S.E. 329). The charge that the railroad was negligent "in maintaining its electric signal lights so close to the ground as not to be visible by a vehicle having another vehicle preceding it," must yield to the averment that "said light is located at a point 7 feet 10 inches above ground level," which, as Judge Felton points out, is of sufficient height that the driver of a vehicle could and should have observed it, unless he was following too closely behind another. (It is to be noted that this light is at a greater distance from the ground than is required by Code § 94-509 requiring signs for the benefit of persons operating locomotives.) No statute requires that the railroad "maintain a black and white striped gate which would come down across said highway," there is no common law duty that it do so, and that charge must fall. "There being no obligation by law resting on the railroad company to have on the side of the public road adjacent or near the railroad tracks any warning sign or metal substance which would reflect the lights of an approaching automobile and warn the driver of the danger of the presence of the railroad crossing, it is not negligence on the part of the railroad company to fail to have erected such sign." Southern R. Co. v. Riley, 57 Ga. App. 26, 27 (4) ( 194 S.E. 422). Thus the charge of failing to "maintain a flashing electric signal light on the left-hand side of the crossing for eastbound traffic approaching said crossing from the west, which said light would not have been obscured by a preceding vehicle or when passing preceding vehicle," fails to charge negligence on the part of the railroad. Likewise, the charge that the railroad was negligent "in failing to have reflectors on the side of the boxcars which would have reflected back the light and indicated the presence of a moving train," charges no negligence, for there rests no legal obligation on the railroad to do that. "The failure of the railroad company to provide lights on the side of cars of the train as it passes over a crossing is not negligence." Southern R. Co. v. Riley, 57 Ga. App. 26, 27 (5), supra.
This may be taking judicial notice, which should be used sparingly for striking down pleadings ( Rives v. Atlanta Newspapers, Inc., 110 Ga. App. 184 (4) ( 138 S.E.2d 100), reversed on other grounds in 220 Ga. 485 ( 139 S.E.2d 395)), but see and compare Cooper v. Anderson, 96 Ga. App. 800, 807 ( 101 S.E.2d 770), where notice was taken of the custom of parents to take children with them into stores, bakeries and shops, and Harvey v. DeWeill, 102 Ga. App. 394 ( 116 S.E.2d 747) where notice was taken that motels usually have entrances opening into courtyards.