Opinion
35905, 35917.
DECIDED JANUARY 6, 1956.
Action for damages. Before Judge Pharr. Fulton Superior Court. July 21, 1955.
Marshall, Greene Neely, Edgar A. Neely, Jr., for Southern Railway Company.
Nall, Sterne, Miller, Cadenhead Dennis, Carter, Latimer Savell, for Grant et al. Grant, Wiggins, Grizzard Smith, for Arrington.
The court did not err in overruling the demurrers to the petition.
DECIDED JANUARY 6, 1956.
Louise Grant brought an action against Southern Railway Company, H. A. McGee, and Charles Arrington, to recover for injuries received as the result of the alleged concurrent negligence of the defendants. The allegations of the petition as finally amended pertinent to the question here for decision were as follows: "3. That at all times mentioned herein, McDaniel Street was a public street in the City of Atlanta, running approximately north and south. 4. That said street is crossed at grade by tracks of the Southern Railway Company, said tracks running generally in an easterly and westerly direction, and said crossing is commonly referred to as the `McDaniel Street Crossing.' 5. That at all times mentioned herein, H. A. McGee was the owner of a 1949 Chevrolet coach automobile, and said automobile was kept for the pleasure and convenience of said defendant and the members of his family, including his minor son, Nelson Howe McGee. 6. That at all times mentioned herein, defendant's said automobile was being operated by his son, Nelson Howe McGee, with the permission of his father. 7. That on the night of December 9, 1954, at approximately 11 o'clock p. m., petitioner was standing on the sidewalk which extends along the eastern side of McDaniel Street at the northeast corner of said railroad crossing. 8. That while petitioner was standing in the position aforesaid, a passenger train, operated by the defendant Southern Railway Company, approached and entered said crossing traveling in an easterly direction. 9. That as said train approached and entered said McDaniel Street crossing it was running at the great and rapid rate of speed of thirty miles per hour. 10. That as said train approached and entered said crossing, the engineer, J. L. Echols, failed to ring the engine bell or sound the whistle or horn or give any signal whatsoever to warn motorists who were using McDaniel Street of the approach of said train. 11. That as said train approached and entered said crossing, the engineer, J. L. Echols, failed to keep a lookout ahead. 12. That as said train approached said crossing in the manner aforesaid, an automobile driven by the defendant McGee was approaching from the south, traveling in a northerly direction on McDaniel Street at the rapid and reckless rate of speed of thirty-five miles per hour. 13. That as defendant McGee's son approached said crossing and when he was approximately twenty-five feet south of said crossing and at the time he entered onto the crossing, he was being pursued by defendant Arrington in an automobile, the said Arrington's automobile being approximately two blocks south of defendant McGee's car. 14. That approximately three blocks south of the crossing defendant Arrington had fired a shot from a pistol and had driven his automobile alongside that of McGee so close that McGee had to cut sharply to his right to avert a collision. Thereupon said Arrington cut his car sharply to the right which forced McGee to the extreme eastern curb of the street and defendant McGee fearing for his safety, speeded up his car in an effort to leave defendant Arrington behind and Arrington continued to pursue McGee. 15. That defendant Arrington knew that said railroad crossing was [immediately] north of where he recklessly cut in on defendant McGee's automobile and he should have anticipated that his reckless and negligent conduct might result in defendant McGee's son driving his said automobile upon the crossing into the path of an oncoming train in an effort to escape him. 16. That said automobile driven by McGee was traveling on its right-hand side of McDaniel Street having regard for the direction in which it was going, and as it approached said crossing there were no other vehicles traveling in front of same going in the same direction. 17. That as defendant McGee approached said crossing he failed to look to his left before going upon said crossing. 18. That the automobile driven by McGee entered said crossing at approximately the same time said train entered the crossing. 19. That the front of the engine struck the automobile approximately in the middle of the left side, knocking the same fifty feet in a northeasterly direction over and into petitioner and severely injured her. 24. That at all times mentioned herein there was a valid, binding, and existing ordinance of the City of Atlanta as follows: `Sec. 48.8. Speed of trains. No train shall run anywhere within the city at a greater rate of speed than twenty-five miles per hour. No person in authority shall issue or cause to be issued any order requiring a greater rate of speed than twenty-five miles per hour at any place within the city.' 25. That the defendant, Southern Railway Company, was negligent by and through its servant, J. L. Echols, in the following particulars: (a) In failing to ring the bell on said engine as it approached and crossed over said crossing, in violation of State law. (b) In failing to keep a lookout ahead as said train approached said crossing, in violation of State law. (c) In running said train over said crossing at the rapid and reckless rate of speed of thirty miles per hour in violation of the valid city ordinance heretofore set forth. (d) In failing to give any warning whatsoever to defendant McGee of the approach of said train to said crossing. (e) In failing to so control the movements of said train as to avoid striking the automobile being driven by defendant McGee. (f) In failing to apply the brakes in time to stop said train before it ran into the automobile of defendant McGee. 26. That the defendant McGee was negligent as follows: (a) In failing to look to his left as the approached said railroad crossing so as to ascertain whether or not a train was approaching. (b) In running upon and onto said crossing at the rapid and reckless rate of speed of 35 miles per hour in view of the existing conditions hereinbefore set out. (c) In failing to have his automobile under control so as to have been able to stop the same before running into the path of said train. (d) In attempting to traverse said crossing in front of said train under all the conditions heretofore set forth. (e) In operating said automobile at a greater speed than was reasonable and prudent under the existing conditions at said time and place, in violation of State law. 27. That the defendant Charles Arrington was negligent as follows: (a) In operating his automobile in the manner aforesaid immediately prior to the defendant McGee's attempted crossing of the railroad tracks; (b) In failing to anticipate that McGee, in attempting to avoid the aforesaid negligent act of Arrington, would likely wreck his car and cause injury to others who might be upon the streets or in close vicinity. 28. That all the above and foregoing acts of negligence of all defendants concurred and jointly cooperated to cause and did proximately cause the injuries sustained by petitioner."
It does not appear that the defendant McGee filed any demurrers to the petition. In case No. 35905 Southern Railway Company excepts to the judgment of the trial court overruling its general and special demurrers.
On the hearing of the demurrers interposed by the defendant Charles Arrington the trial court ordered the word "immediately" stricken from paragraph 15 of the petition. The balance of this defendant's demurrers were overruled and it is to this judgment that exception is made in case No. 35917.
1. In the present case it is contended that the alleged negligence of the defendant Arrington — in firing a shot from a pistol, and in attempting to run off the road the automobile which was later struck by the train of the Southern Railway Company — combined with the alleged negligence of the other defendants so as to constitute the proximate cause of the plaintiff's injuries.
"Questions as to diligence and negligence, including contributory negligence and what constitutes the proximate cause of an injury complained of, are peculiarly questions for the jury, and this court will not solve them on general demurrer unless they appear palpably clear." Mason v. Frankel, 49 Ga. App. 145 (2) ( 174 S.E. 546); Duren v. City of Thomasville, 92 Ga. App. 706 ( 89 S.E.2d 840). Therefore, the argument of the defendant Arrington, that the judgment of the trial court overruling his general demurrer to the petition should be reversed is without merit since it is not palpably clear that the negligence charged to this defendant did not contribute to the proximate cause of the injury to the plaintiff.
The special demurrers interposed by this defendant are controlled by the ruling on the general demurrer, and the judgment of the trial court thereon must be affirmed.
2. The petition alleged that the defendant Southern Railway Company was negligent through its agent in failing to keep a proper lookout ahead of the train, in failing to ring the engine bell, sound the whistle or horn, or otherwise give motorists using McDaniel Street any warning of the approach of such train and was negligent in operating the train at a speed of thirty miles per hour in violation of a valid pleaded ordinance of the City of Atlanta which prohibits trains from being operated at a rate of speed in excess of twenty-five miles per hour within the city limits. It was further alleged that the concurrent acts of negligence of the various defendants caused the injuries to the plaintiff for which recovery is sought.
The allegation that the defendant railway company's train was being operated at a speed greater than allowed by city ordinance at the time of the collision was an allegation of negligence per se, and if this be proved on the trial of the case, and this was the proximate cause of the collision which produced the plaintiff's injuries the defendant railway company would be liable. Central of Georgia Ry. Co. v. Barnes, 46 Ga. App. 158 (1 a) ( 167 S.E. 217), and cases cited. Also the other allegations of negligence on the part of the defendant railway company that through its engineer it failed to keep a proper lookout ahead of the train and failed to ring the bell, sound the whistle or horn, or otherwise give motorists any warning of the approach of the train would be negligence per se under Code § 94-507, and would also fall within the provisions of the ruling of this court, in Central of Georgia Ry. Co. v. Barnes, supra.
Under the ruling of this court in Callahan v. Cofield, 61 Ga. App. 780 ( 7 S.E.2d 592), it is properly a question for the jury in the present case as to what act, or acts, of negligence caused the alleged injuries to the plaintiff. See also McGinnis v. Shaw, 46 Ga. App. 248 ( 167 S.E. 533); Luke v. Powell, 63 Ga. App. 795 ( 12 S.E.2d 196), and cases cited.
Accordingly, the trial court did not err in overruling the general demurrer of the defendant railway company based on the ground that the petition did not set forth a cause of action against it.
3. The special demurrers of the defendant railway company based on the ground that the allegations of the plaintiff's petition concerning it were, "irrelevant, immaterial, and prejudicial, it not appearing that any proximate causal connection existed between the alleged facts therein set forth and the plaintiff's injury," are controlled by the judgment on the defendant's general demurrer, as is the special demurrer directed to the pleaded ordinance of the City of Atlanta. The balance of the special demurrers which allege that the allegations of negligence charged to this defendant were not supported by well pleaded facts are without merit and were properly overruled by the trial court.
Judgments affirmed in both cases. Felton, C. J., and Quillian, J., concur.