Opinion
38709.
DECIDED MAY 24, 1961. REHEARING DENIED JUNE 14, 1961 AND JUNE 27, 1961.
Action for damages. Worth Superior Court. Before Judge Gray.
Ford Houston, Gibson Gardner, Sam J. Gardner, Jr., for plaintiff in error.
Farkas, Landau Davis, Marion Bridges, Edmund A. Landau, Jr., contra.
1. The petition sets forth a cause of action for reasons stated in the body of the opinion.
2. Allegations of inducement which are introductory to the substance of the complaint and which merely serve to show the history of the case or the surrounding conditions and circumstances where the cause of action arose are not subject to demurrer on the ground that such allegations are irrelevant.
3. The trial court did not err in overruling the special demurrers of the defendant.
4. For reasons stated in the body of the opinion the trial court erred in overruling the defendant's amended motion for a new trial.
DECIDED MAY 24, 1961 — REHEARING DENIED JUNE 14, 1961 AND JUNE 27, 1961.
Betty Ann Rutherford, a minor, brought an action by her mother, as next friend, against the Georgia, Ashburn, Sylvester Camilla Railway Co. in the Superior Court of Worth County. The petition, in substance, alleged that the plaintiff was riding in an automobile driven by her father when it was involved in a collision with a train being operated by the defendant railway company; that the accident happened at approximately 7 p. m., on a dark, moonless night, on State Highway No. 112, known as the Sylvester-Camilla road, at a public crossing near Parkersville Church in Worth County, Ga.; that said highway is a part of the State highway system of roads and is heavily traveled; that the car in which the plaintiff was a passenger was proceeding south at a very moderate rate of speed; that, "As the automobile approached the railroad crossing, there is a sweeping, uphill curve in the road which ends at the top or crest of a hill, at which point at the top of the hill, the road straightens out and there is a steep descent or downgrade a short distance to the railroad track which crosses the highway at an angle. On the other side of the railroad track the road again rises to a crest, so that the railroad track crosses the highway in a bottom or cut. Plaintiff further shows that bushes and trees grow down to the edge of the road, and there is an embankment partially blocking the view of a train on or approaching said crossing as a driver approaches the crossing in a motor vehicle. Plaintiff further shows that there was sand and dirt on the paved highway near the bottom and on the side of the track from which the automobile was approaching. Plaintiff shows that the usual schedule and customary time for this train to arrive at this particular crossing, was on or about 4 p. m., rather than about 7 p. m. when this accident happened. There are few trains operating at this crossing and none scheduled for this particular time."
The petition further alleged that at the time of the collision the train was barely moving, and that "in addition to the night being dark, the cars were of a dark color with a profile very low to the ground, making it almost impossible to see these flat cars from an automobile"; that the operator of defendant's train did not give any signal either by whistle, bell, or otherwise, to warn approaching motorists that the train was in the vicinity of the crossing.
The petition further alleged that, "Plaintiff's father was keeping a sharp lookout for a train, as he came over the crest of the hill and down the hill, with his headlights on, attempting to determine whether there was a train approaching the crossing or on the crossing, but due to the physical conditions set forth above and below in this petition, and the failure of the train to give any warning of its presence on or approach to the crossing, the train was not visible until it was too late to stop. The plaintiff's father applied brakes, which were in good order and held, but slid into the train with brakes on, there being insufficient time to stop the car after the train was visible. Plaintiff shows that there was no watchman or gates or lights or any other protective device to warn traffic of the approach of or presence on the crossing of a train, nor was any member of the train crew assigned to warn approaching vehicular traffic."
The petition alleged that the defendant was negligent: "(a) In failing to sound a whistle or ring a bell or give other warning to the driver of the automobile in which the plaintiff was a passenger, of the approach of or presence of said train at the crossing," (b) in failing to blow a whistle as required by Code Ann. § 94-506, (c) in failing to have a light at the crossing which would give motorists some warning of the presence of a train on the crossing, "(d) in failing to maintain a watchman or a guard or a crew member to warn motorists of the presence of or approach of a train under the circumstances alleged in the petition," and "(e) in failing to maintain gates or electric signaling devices warning motorists of the presence on or approach of a train to the crossing, under the circumstances alleged in this petition."
The petition described injuries alleged to have been sustained by the plaintiff, and she prayed damages in the amount of $50,000.
The defendant filed a general and special demurrer to the plaintiff's petition which were overruled by the trial court, and such ruling is assigned as error in this appeal.
At the trial, Marvin Rutherford, father of the plaintiff, testified that he was familiar with the crossing: "I go across that crossing every day on my way to work. I knew the crossing was there"; that the railroad lies right in a flat between two hills and that there was a high embankment on both sides. He further testified that when "there is a train across the track, you can't see that part of the train that has passed over it [the road] on one side and the part that is over on the other side. It's very hard to see it." The witness testified that he went over the hill and from there, "it's a steep downgrade, and it's hard to see over that hill on either side you are going because it's a hill. I had my headlights on, and they were burning. It seemed they shined down on the road after you go over that steep grade. When I cleared the hill going south I was looking both ways looking for the train coming out there. I knew what kind of crossing it was, I slowed down, I didn't hear anything and the first thing I knowed I was up with the train and I couldn't stop. I was looking both ways and was going 35 to 40 miles per hour, I am pretty sure."
The witness stated that "no whistle blew as I approached that crossing; there was no bell ringing. I have heard the whistle out there on that train several times. At times it's strong, at other times it's pretty weak." There were no lights of any kind at the crossing and there were no protective gates. There was no one flagging at the crossing, and no lights were visible on the train at all.
He further testified: "I applied my brakes when I was about 50 feet from the train. About the time I applied the brakes my wife told me there was the train. My brakes held, but I didn't seem to have no traction at all. I had had my brakes worked on about a week or a week and a half before the accident. . . The first part of the train I saw was the wheels; the lights picked up the wheels, the wheels shined that's what I first seen, the reflection of the wheels. As I got closer to the tracks I saw that they were low cars, kinder gray looking, they was just flat low cars, they wasn't high type cars. The color of the cars and the road blended perfectly; they was practically the same color. I must have been about 50 foot from the train when I got a glimpse of the wheels; that's when I seen the left-hand part of the train and put on brakes."
Mrs. Rutherford, plaintiff's mother, testified to substantially the same facts as the driver as to the events immediately before and at the time of the collision, and that she did not hear the sound of a whistle or bell.
Another witness, a mechanic, testified that he had, within a week prior to the time of the accident, repaired the brakes of the vehicle in which plaintiff was riding, and that they were in good condition.
A witness who lived near the crossing testified that he heard no whistle on the night of the collision; that his house is about 350 to 400 yards from the crossing at the crest of a hill; that the highway is "some 1000 or 1200 feet straight road" from a point in front of his house to the railroad crossing. He also testified: "If I was driving south in a car approaching that railroad track, I couldn't see an object in the bottom there till I got right on it. The side of the road around the track is growled up for one thing, and it's an embankment on each side."
Conflicting testimony was introduced as to whether this highway was used heavily by motorists.
A witness for the defendant testified that the defendant began running extra trains in May, 1958, but that only one train ran on the date of the collision; that it was equipped with a Diesel whistle which, the witness thought, could be heard probably by one listening for a distance of a mile.
The engineer testified that he saw no automobile approaching the crossing; that he sounded a whistle beginning at a point supposed to be 400 years from the crossing, and that the engine was pulling approximately 40 cars, consisting mostly of hoppers and gondolas, and a caboose. He testified that the engine did not hit an automobile, and the first time he knew the train had been involved in an accident at the Parkersville Church crossing was after it arrived at Sylvester.
The fireman testified that he saw no automobile approaching the crossing and that the engineer blew the whistle beginning at about 400 yards from the crossing.
A State Highway Patrolman testified that he visited the scene of the accident, and later caught up with the train and inspected it. He found paint scraping on a gondola car and took samples thereof. He determined that the automobile hit railroad car No. 21140. The witness visited Marvin Rutherford in the hospital, and he (Rutherford) stated to the patrolman that he (Rutherford) was driving his automobile about 50 miles per hour at the time of the collision. The State Highway Patrolman stated that he measured the skid marks at the scene of the accident, and that such skid marks were 100 feet long and ended right at the railroad track.
Photographs of the crossing and surrounding conditions where the collision occurred were introduced by both the plaintiff and the defendant.
The jury returned a verdict for the plaintiff, and within the time allowed by law, the defendant filed a motion for a new trial and later an amendment thereto was allowed. The trial court overruled the amended motion for a new trial, and such ruling is assigned as error in this appeal.
1. As stated in Central of Georgia Ry. Co. v. Brower, 102 Ga. App. 462, 464 ( 116 S.E.2d 679): "It is so well established in Georgia as to require no citation of authority that questions of negligence and causation are, except in plain, palpable and indisputable cases, solely for decision by the jury, and that such questions will not be decided upon demurrer unless reasonable minds cannot differ. It is equally well established that, unless the defendant can admit every allegation of fact set forth in the petition and still escape liability, a general demurrer ought not to be sustained."
The defendant contends that the petition reveals that the acts of the driver of the vehicle in which the plaintiff was riding were the sole proximate cause of the collision, and because of such fact this defendant would not be liable to the plaintiff. While it is alleged that such driver knew of the railroad crossing, this fact alone is not sufficient to bar an action by such driver as a plaintiff. Savannah c. Ry. Co. v. Newsome, 90 Ga. App. 390 ( 83 S.E.2d 80). Accordingly, it cannot be said that such knowledge would bar an action by a guest passenger. Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159 ( 91 S.E.2d 135).
The defendant's next contention is that the plaintiff's petition reveals that such driver, in the exercise of due care, should have seen the defendant's train across the highway in time to bring his vehicle to a stop without colliding with the train. It is alleged that the automobile in which the plaintiff was riding was "proceeding south at a very moderate rate of speed." In the Brower case, supra (p. 466), the court stated: "A plaintiff is not necessarily guilty of such negligence as would bar a recovery for injuries sustained as the result of his running into an obstruction in a highway, as against one negligently obstructing the highway or street, by reason of the mere fact that he operates his automobile along such highway or street at night and at such a speed as would render it impossible for him to stop within the distance illuminated by his headlights. Bach v. Bragg Bros. c., Inc., 53 Ga. App. 574 (3) ( 186 S.E. 711); McDowall Transport, Inc. v. Gault, 80 Ga. App. 445 ( 56 S.E.2d 161)." Consequently, the fact that the driver of the automobile in which the plaintiff was a passenger in the instant case failed to see the train in time to stop within the range of his headlights cannot be said to be the sole proximate cause of the collision as a matter of law.
It is our conclusion that the plaintiff does not allege facts in her petition whereby it can be construed to mean that the driver of the vehicle in which the plaintiff was riding could have stopped within the range of his headlights, but even if such be the case, the plaintiff alleged facts to explain or excuse such driver's failure to see the position of the train across the highway. See Judge Felton's special concurrence in McDowell Transport, Inc. v. Gault, 80 Ga. App. 445, supra, at page 449, which was approved in Central of Georgia Ry. Co. v. Brower, 102 Ga. App. 462, supra. See also Savannah c. Ry. Co. v. Newsome, 90 Ga. App. 390, supra. Such questions are especially for a jury's determination. Bach v. Bragg Bros. c., Inc., 53 Ga. App. 574, supra; Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528 ( 134 S.E. 126).
Upon reaching the conclusion that the petition does not affirmatively show that an act or failure to act on the part of the driver of the vehicle in which the plaintiff was riding was the sole proximate cause of the collision, we must now determine whether the plaintiff alleged any act or want of action on the part of this defendant to show a breach of duty owed by the defendant to the plaintiff which proximately caused the plaintiff's injury.
The plaintiff alleged that the defendant failed to sound a whistle or ring a bell at the time the train was approaching the crossing to warn motorists approaching the crossing, failed to have a warning light at the crossing, and failed to have a watchman, guard or crew member to warn approaching motorists of the presence of the defendant's train across the highway.
As stated in the Brower case, supra (p. 465), "While it has been held that a railroad has a right to use its crossing and will not be charged with negligence because of the mere fact of stopping its train on a crossing for such a length of time as is reasonably necessary in the conduct of its business, or in operating the train slowly and noiselessly over the crossing ( Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708, 711, supra), these are not the sole acts of negligence alleged here." The failure to warn motorists who were approaching the railroad crossing by whistle or bell, by appropriate warning light, etc., is the gist of the plaintiff's action. Such failure to warn can support a cause of action. See Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528, supra.
It was a jury question as to whether the defendant took proper precautions in the exercise of due care to warn motorists approaching the crossing that the highway was obstructed. There are circumstances where due care for the safety of others would require a railroad obstructing a crossing to place a guard, light, or some other warning at a proper point to give notice for the time that the crossing is obstructed." Savannah c. Ry. Co. v. Newsome, 90 Ga. App. 390, 394, supra. In Georgia Power Co. v. Blum, 80 Ga. App. 618, 625 ( 57 S.E.2d 18), it was held: "After full consideration, this court is of the opinion that, in all cases where the minds of reasonable persons may disagree as to whether an act alleged to be negligent is in fact negligence, as well as in all cases where reasonable minds may disagree as to whether the negligence alleged concurred with the negligent acts of third persons as a proximate cause, these questions should go to a jury for decision." The petition sufficiently alleged a cause of action under the rulings of Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159, supra; Atlantic Coast Line R. Co. v. Studdard, 99 Ga. App. 609 ( 109 S.E.2d 523); Central of Georgia Ry. Co. v. Brower, 102 Ga. App. 462, supra; Jones v. Grantham, 102 Ga. App. 436 ( 116 S.E.2d 668); Central of Georgia Ry. Co. v. Barnett, 35 Ga. App. 528, supra.
2. Facts pleaded which are introductory to the substance of the complaint and which merely serve to show the history of the case or the surrounding conditions and circumstances where the cause of action arose are allegations of inducement. Etheridge Motors v. Haynie, 103 Ga. App. 676. Such allegations do not require the particularity in pleading as do other essential averments setting out the essence of the cause of action. Yorkshire Ins. Co. v. Cravey, 102 Ga. App. 591 ( 117 S.E.2d 167). See also American Thread Co. v. Rochester, 82 Ga. App. 873 ( 62 S.E.2d 602); Whitaker v. Creedon, 97 Ga. App. 320 ( 103 S.E.2d 175); Hobbs v. Holliman, 74 Ga. App. 735 ( 41 S.E.2d 332); Rhodes v. Industrial Finance Corp., 64 Ga. App. 549 ( 13 S.E.2d 883).
The defendant demurred to certain allegations of the plaintiff's petition which alleged "that bushes and trees grew down to the edge of the road," and "that there was sand and dirt on the paved highway near the bottom [of the hill] and on the side of the track from which the automobile was approaching," on the grounds that the defendant does not control these conditions, that such allegations are not ones of negligence chargeable to this defendant, and that the facts are irrelevant to this cause of action. (It is observed by the court that the plaintiff struck the latter allegation from her petition during the trial of the case. Consequently, any error in overruling this demurrer would be rendered harmless.) These allegations serve only to describe the physical, geographical characteristics of the locale where the collision occurred, and accordingly are allegations of inducement to describe the surrounding terrain at the scene of the accident. The court properly overruled these demurrers. See also Central of Ga. Ry. Co. v. Brower, 102 Ga. App. 462, supra.
3. The defendant demurred to the allegation that the road in question was "heavily traveled" on the ground that such allegation is irrelevant and immaterial. In Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708 ( 160 S.E. 131), it was held: ". . . it might be true that in particular circumstances due care for the safety of travelers would require the placing of a guard, light, or other warning at a proper point for the purpose of giving notice for the time being that the street was obstructed." See also Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528, supra. This allegation is germane to the question of what precaution the defendant railway company should have taken in the exercise of ordinary care to warn approaching motorists that its train was traversing the public highway and thereby blocking it for vehicular traffic. What might be sufficient and proper warning on a rural dirt road and a busy thoroughfare might be vastly different as to this defendant's exercise of due care for the safety of motorists approaching such crossings. "There are circumstances where due care for the safety of others would require a railroad obstructing a crossing to place a guard, light, or some other warning at a proper point to give notice for the time that the crossing is obstructed." Savannah c. Ry. Co. v. Newsome, 90 Ga. App. 390, supra. As reasonable minds might differ on these questions, they are necessarily for a jury's determination and not for the court, except in clear, palpable, plain, and indisputable cases. Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528, supra; Central of Ga. Ry. Co. v. Brower, 102 Ga. App. 462, supra; Jones v. Grantham, 102 Ga. App. 436, supra. The trial court did not err in overruling the special demurrer. The remaining grounds of the special demurrer not specifically ruled upon are without merit.
4. Special grounds 4 and 5 of the amended motion for a new trial assign as error the court's charge relative to the duty of the defendant to sound a whistle when approaching the crossing. The basis of such contention is that the charge was not adjusted to the facts of the case, in that the failure to blow a whistle was not within the proximate cause of the collision after the train engine had reached the crossing. However, under the ruling of Southern Ry. Co. v. Riley, 60 Ga. App. 475 ( 4 S.E.2d 54), such contention was decided adversely to the defendant. Anything said in Pollard v. Clifton, 62 Ga. App. 573 ( 9 S.E.2d 782), contrary to the Riley case, supra, must yield to the Riley case because it is an earlier controlling decision.
Special ground 4 also assigns as error the trial court's charge which would authorize the jury to find the defendant negligent if the defendant's engineer failed to ring a bell as the train approached the crossing.
One allegation of negligence in the petition is that the defendant's engineer failed "to sound a whistle or ring a bell or give other warning to the driver of the automobile in which plaintiff was a passenger of the approach of or presence of said train at the crossing." The court charged that ". . . plaintiff contends that the defendant was negligent in the failure of its employees to blow a whistle or ring a bell, as required by law, . . . [I]f you should find that the defendant railroad was guilty of any negligence at all in one or more of the grounds of negligence alleged . . . and any such negligence . . . proximately contributed to the injuries complained of . . . [T]he plaintiff would be entitled to recover. . ." Movant contends this charge was erroneous and prejudicial to it because, there being no evidence that the collision occurred within the corporate limits of a municipality, no obligation arose, by operation of law, to "ring a bell."
Failure to ring a bell under certain circumstances may constitute negligence in fact ( Atlantic Coast Line R. Co. v. Studdard, 99 Ga. App. 609 (7), supra), but not negligence per se ( Code § 94-507). If the allegation could be construed to mean that negligence in failing to ring a bell might be considered sufficient in and of itself to justify a verdict in favor of the plaintiff, the charge would have been error under the circumstances because it appears that the engine had already crossed the crossing, together with 33 cars of the train. If, however, as the plaintiff contends, she did not allege that failure to ring a bell was negligence under all circumstances, but only that failure to give proper warning, either by means of a bell, whistle, watchman, or otherwise, was negligence which proximately caused her injury, then it becomes evidence that the charge was error in that it amounted to an instruction to the jury that the defendant was required by law to ring a bell, which is not the case. The jury must have so understood the instruction in view of the fact that under the pleadings, which the jurors had with them, it was obvious that the plaintiff did not contend the defendant was required by law to ring a bell, and that the court was in fact instructing them that to ring a bell was required by law.
"Whenever the question is one of evidence only, and there is room for apprehension that the jury, on account of the ambiguity in the language of the charge, may have been misled in considering and weighing the testimony, it is safest to send the case back for another trial." Fain v. Cornett, 25 Ga. 184. We feel that under the facts of this case this charge, under any reasonable construction, requires a conclusion that it was equal to an instruction to the jury that the engineer of the railroad company's train was required by statutory law to ring a bell upon approaching the crossing even though it was not within the corporate limits of a town, city, or village, and that if he failed to so do, such failure was negligence as a matter of law. The charge was therefore incorrect, without evidence to support it, and prejudicial to the railroad company. Accordingly, the trial court erred in overruling the amended motion for a new trial.
Judgment reversed. Townsend, P.J., Carlisle and Jordan, JJ., concur.