Opinion
36249, 36250.
DECIDED JULY 16, 1956. REHEARING DENIED JULY 30, 1956.
Tort; pedestrian killed by train at crossing. Before Judge Pharr. Fulton Superior Court. March 16, 1956.
Edgar A. Neely, Jr., Marshall, Greene Neely, for plaintiffs in error.
John W. Wilcox, Jr., Wilson, Branch Barwick, contra.
The court did not err in overruling the general demurrers to the petition as amended.
DECIDED JULY 16, 1956 — REHEARING DENIED JULY 30, 1956.
Essie Thornton sued the Southern Railway Company and Tim W. Haulbrook, its engineer, to recover damages for the tortious homicide of her husband. The petition as finally amended is as follow: "4. On January 29, 1955, defendant Southern Railway Company owned, maintained, and controlled a right-of-way in the City of Atlanta, Fulton County, Georgia, which, at and near its intersection with McDaniel Street, S.W., in the city of Atlanta, runs in a north-westerly, south-easterly direction. 5. McDaniel Street, S.W., is a public street in the City of Atlanta, Fulton County, Georgia, and at and near its intersection with the right-of-way of the Southern Railway Company aforesaid, runs in a north-south direction. 6. The intersection of the Southern Railway Company right-of-way and McDaniel Street aforesaid forms a public crossing within the City of Atlanta, Fulton County, Georgia. 7. Said crossing is heavily traveled by motor vehicles and pedestrians, and is located in a highly congested residential, commercial and industrial area. 8. Said right-of-way of Southern Railway Company has five sets of parallel tracks, consisting of two sets of main tracks, and three sets of `spur' tracks. 9. Approaching said crossing going north on McDaniel Street, the sidewalk on the east side provided for use by pedestrians abruptly ends approximately five feet from the first set of tracks. 10. The walkway provided for the pedestrians on the east side of McDaniel Street going north over the said crossing consists of dirt, gravel and stones. 11. Said walkway for pedestrians over the crossing is under the control of Southern Railway Company and said company is responsible for its maintenance and repair. 12. On January 29, 1955, said walkway was in a defective condition and in a state of disrepair, in that there were numerous large loose stones in the walkway, and the level of the walkway was below the level of the tracks, so that the cross-ties and tracks were exposed causing difficulty in walking across said tracks and cross-ties and loose stones. 13. The said walkway had been in a defective condition and state of repair for more than a month prior to January 29, 1955. 14. Said defective condition and state of disrepair of the said walkway should have been known to the defendant Southern Railway Company in the exercise of due diligence. 15. There is at the southeast corner of the crossing aforesaid a signaling device which is for the purpose of affording to the public using said crossing timely warning of approaching trains. 16. On January 29, 1955, there was a valid and existing ordinance of the City of Atlanta regulating speed of trains within the city limits which reads 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.' 17. On January 29, 1955, at approximately 6:20 p. m. your petitioner's husband, Elmo Thornton, was a pedestrian walking north on the east sidewalk of McDaniel Street. 18. As your petitioner's husband reached the beginning of the public crossing aforesaid, he ascertained that the signal device was not ringing or flashing, that no train whistle was blowing or no bell tolling, and that no train was approaching the crossing. 19. Accordingly, he started across the crossing over that portion used by pedestrians on the east side of McDaniel Street as hereinbefore described. 20. Your petitioner's husband at the time he started across the crossing aforesaid had a poorly healed fracture of his left leg, and had lost his great toe and fourth toe of the left foot. Said infirmities severely handicapped your petitioner's husband so that it was impossible for him to run or move rapidly. 21. As your petitioner's husband had traversed part of the crossing aforesaid, a passenger train owned by defendant Southern Railway Company and operated by defendant Tim W. Haulbrook approached the crossing aforesaid, traveling in a northwesterly direction. 22. As the train approached said crossing, it was moving at a rate of speed of approximately 50 miles per hour. 23. As the train approached the said crossing, it did not blow its horn or toll a bell or otherwise signal its approach to the public using said crossing. 24. (a) That after your petitioner's husband had entered the said crossing and had moved into a position on the second track from the south edge of the crossing, the center point of said second track being approximately 10 feet from the center point of the middle or third track of the south side of said crossing, the signal device began operating. (b) Thereupon, your petitioner's husband walked south off the second track and onto the third or middle track from the south side of said crossing, the center point of said third or middle track being approximately 35 feet from the south edge of said crossing, in an effort to remove himself entirely from said crossing. (c) That when the signal device began operating, the train of the defendant Southern Railway Company operated by the defendant Haulbrook was more than 200 yards east of said crossing and its headlamp was shining down the track in a northwesterly direction. (d) That from the position your petitioner's husband was located when the signal device began operating, a train moving in a northwesterly direction more than 200 yards east of said crossing with its headlamp burning appears to be proceeding on the second track from the south side of said crossing when it is in fact proceeding north-westerly down the middle or third track from the south edge of said crossing for the reason that the said five tracks curve in a west-northwesterly direction east of said crossing. 25. The defendant Tim W. Haulbrook, at the time and place aforesaid, was operating said train as an agent and servant of the defendant Southern Railway Company, and was acting within the scope of his employment. 26. The defendant Haulbrook failed to keep a lookout ahead on the tracks so as to avoid injuries to those who might be using the crossing. 27. The defendant Haulbrook failed to apply the brakes of the train after he had ascertained the presence of your petitioner's husband on the tracks. 28. That as your petitioner's husband made an attempt to remove himself from said crossing, the said train struck your petitioner's husband on the middle or third track from the south edge of said crossing, inflicting grievous injuries which caused the death of your petitioner's husband. 29. Because of the defective condition and state of disrepair of the pedestrian crossing aforesaid, and because of his infirmities, your petitioner's husband's progress across said crossing was greatly impeded, so that after ascertaining the presence of the oncoming train, he was unable to remove himself rapidly from the tracks. 30. The defective condition and state of disrepair of the pedestrian crossing aforesaid prevented your petitioner's husband from moving from the path of the onrushing train after he learned of its presence. 31. At the time and place aforesaid, because of the lack of light at that time of day, your petitioner's husband was not aware of the presence of said train until it was so close upon him that he could not remove himself from its path because of the conditions aforesaid which existed. 32. The presence of your petitioner's husband upon the track in the path of the train was known to the defendant in sufficient time for defendants to stop the train before striking your petitioner's husband, if said train had not been traveling in excess of the established speed for trains in the City of Atlanta, as set out hereinabove. 33. The signaling device mentioned hereinbefore did not begin operating until after your petitioner's husband entered the pedestrian crosswalk aforesaid 34. Because of the rapid speed of the train, to wit: approximately 50 miles per hour, the train was dangerously close to the intersection before the signaling device began to operate. 35. Said signaling device at that location is mechanically set to give sufficient warning to those using the said crossing only at the speed for trains allowed by the ordinance of the City of Atlanta, set out hereinbefore, and is insufficient to give timely warning if the trains traversing said crossing are traveling at a high and excessive rate of speed, to wit: approximately fifty miles per hour. 36. It is the duty of the defendant Southern Railway Company to give sufficient and timely warning at public crossings of approaching trains. 37. Your petitioner's husband, because of the failure of the said signaling device to operate properly at the speed which the train was moving, did not have sufficient and timely warning of the onrushing train before he entered the pedestrian crosswalk aforesaid. 38. The defendants herein were negligent in the following particulars: (a) In failing to give your petitioner's husband sufficient and timely warning of the approaching train before he entered the pedestrian crosswalk aforesaid; (b) In failing to keep a proper lookout ahead on the tracks so as to avoid striking your petitioner's husband; (c) In failing to toll its bell while approaching the crossing aforesaid so as to give your petitioner's husband warning of the approaching train, in violation of Section 94-507 of the Code of Georgia, which is negligence per se; (d) In operating the train at a rate of speed of approximately 50 miles per hour, in violation of Section 48.8 of the ordinances of the City of Atlanta, set out hereinbefore which is negligence as a matter of law; (e) In failing to apply the brakes of the train after the presence of your petitioner's husband on the tracks was known to the defendants. 38A. The defendant Southern Railway Company was further negligent in failing to maintain and keep in a state of repair the pedestrian crossing aforesaid, so that the progress of your petitioner's husband and others using said crosswalk would not be impeded upon the approach of trains. 39. The above acts of negligence of the defendants, either singly or in combination, solely and proximately caused the death of your petitioner's husband and the consequent damage to your petitioner. 40. Your petitioner's husband was in the exercise of ordinary care for his own safety, but because of the failure of the defendants to give him sufficient and timely warning before he entered the pedestrian crosswalk aforesaid, and their failure to toll the bell of the train while approaching said crossing, so as to warn your petitioner's husband after he entered the crossing, their failure to keep a proper lookout ahead so as to ascertain the presence of your petitioner's husband on the tracks, their failure to apply the brakes after the presence of your petitioner's husband on the tracks was known, their failure to maintain and keep in repair the pedestrian crossing aforesaid so that it would not by its condition impede the progress of your petitioner's husband after he ascertained the presence of the train, and the act of the defendants in operating the train at an excessive rate of speed, your petitioner's husband was unable to move out of the path of the train in sufficient time to avoid being struck by it."
The defendants filed general and special demurrers to the petition as amended, all of which were overruled except a special demurrer to paragraph 38(f) of the petition as amended which demurrer was sustained and the sustaining of which eliminated paragraph 38(f) from the petition as amended. The defendants by separate bills of exceptions except to the overruling of their demurrers.
It is stated in the briefs of the plaintiffs in error that on June 25, 1955, the trial judge sustained the general demurrers to the petition and allowed the plaintiff fifteen days within which to amend. This judgment is not specified as a part of the record and if it were so specified the situation would not be altered since under the Act of 1952 (Ga. L. 1952, pp. 243-245; Code, Ann. Supp., § 81-1001) such an order making a ruling on pleadings and allowing time within which to amend is of no binding force and does not constitute the law of the case. So whatever is true with reference to whether the original petition sets forth a cause of action as against a general demurrer, the only question now for consideration is whether the petition as amended sets forth a cause of action as against a general demurrer, the assignments of error as to the overruling of the special demurrers having been abandoned.
1. The court did not err in overruling the general demurrers to the petition as amended. The facts alleged do not show positively and affirmatively as a matter of law that petitioner's deceased husband was the author of his own misfortune either in that he did not exercise ordinary care in the circumstances before the alleged acts of negligence on the part of the defendants occurred or that he could have by the exercise of ordinary care avoided the consequences of the defendants' negligence after he discovered the alleged negligence of the defendants or could have discovered it by the exercise of ordinary care. The strongest contention of the plaintiffs in error is that the allegations of the petition show that the optical illusion caused by the curvature of the tracks ceased to exist in time to afford the deceased an opportunity to protect himself in the exercise of ordinary care. The allegations of the petition do not show how long the optical illusion lasted and hence the facts do not bear out the contention of the plaintiffs in error in this respect as against the general demurrer. The facts in this case do not bring it within the principle stated in the following cases: Coleman v. Western Atlantic R., 48 Ga. App. 343 ( 172 S.E. 577); Peeples v. L. N. R. Co., 37 Ga. App. 87 ( 139 S.E. 85); Porter v. Southern Ry. Co., 73 Ga. App. 718 (1) ( 37 S.E.2d 831); Harris v. Southern Ry. Co., 129 Ga. 388, 391 ( 58 S.E. 873); Thomas v. Central of Ga. Ry. Co., 121 Ga. 38 ( 48 S.E. 683).
The court did not err in overruling the defendants' general demurrers to the petition as amended.
Judgments affirmed. Quillian and Nichols, JJ., concur.