Opinion
37352.
DECIDED OCTOBER 21, 1958.
Tort; automobile and train collision. Bartow Superior Court. Before Judge Davis. July 11, 1958.
John Sammons Bell, Neel Ault, E. S. Ault, for plaintiff in error.
Wm. A. Ingram, contra.
Whether the commission of acts other than those prescribed by statute or a valid municipal ordinance constitute negligence is exclusively for determination by the jury and it is error for a trial judge in his charge to declare a particular act or omission to be negligence.
DECIDED OCTOBER 21, 1958.
Betty C. Mansfield filed a suit against the Western Atlantic Railroad for damages arising out of a collision of the defendant's train and an automobile owned by the plaintiff.
The petition alleged in part: that the damage to the plaintiff herein complained of occurred between 7:30 p. m. and 8 p. m. on November 7, 1956, at and on the public railroad crossing located within the corporate limit of the City of Cartersville, Georgia, known as the Cook Street railroad crossing; that between 7:30 and 8 p. m. on November 7, 1956, Bobbie Jean Smith was operating the plaintiff's 1953 model Ford automobile in a southerly direction on South Tennessee Street; when she came to its intersection with Cook Street, she made a right turn into Cook Street and virtually came to a stop at and before entering upon the Cook Street railroad crossing; the plaintiff was riding in the car with Bobbie Jean Smith; she and Bobbie Jean Smith looked to the north and south, up and down the railroad and listened but did not see any train approaching, did not hear any train approaching and no whistle was blown or bell rung by any train north of and approaching the crossing; Bobbie Jean Smith then accelerated the car for the purpose of traversing the crossing while traveling in a westerly direction along Cook Street; when she attempted to accelerate her motor by feeding it gas, the motor choked down and stopped so that the automobile stopped with the front end on the track of the railroad crossing; at that time the south-bound freight train, Number 53, engine 365, of the Louisville Nashville Railroad Company, blazed around the curve in said railroad at a distance of three hundred twenty-five (325) feet north of the crossing while making a speed of between 40 and 50 miles per hour; the train did not blow any whistle as required by law or give any warning of its approach as it was approaching the crossing; being unable to get the motor of the automobile started, the plaintiff and Bobbie Jean Smith jumped from the automobile and started running at a top speed in an easterly direction in order to get out of the way of the train and to a place of safety before it collided with the automobile at the foresaid dangerous and high rate of speed; after they had taken some eight or ten steps, said train crashed into the automobile at said speed and hurled it in a southeasterly direction onto the shoulder of South Tennessee Street a distance of some 50 or 60 feet and then proceeded on down the track where it was finally brought to a stop by the engineer; the train destroyed the automobile by warping, twisting, bending, and breaking it to the extent that it had no further market value immediately after the collision; prior to the collision the automobile had a market value of $1400; immediately after the accident it had a junk salvage value of $50; in conjunction with the acts of negligence hereinabove set out, which contributed to the proximate cause of the aforesaid damage, the proximate cause of the damage was the negligence of the defendant in the following particulars, to wit: by operating the train at the aforesaid time and place in approaching the crossing at a speed in excess of 20 miles per hour in violation of the ordinance of the City of Cartersville known and identified as § 132 of the Code of the City of Cartersville as shown in Exhibit A hereto; by operating the train without constantly tolling the bell of the locomotive in violation of Ga. Code § 94-507; by failing to keep and maintain a constant and vigilant lookout along the track ahead of its engine while moving in the corporate limit of the city in violation of Ga. Code § 94-507; by failing to exercise due care in so controlling the movements of the train as to avoid doing injury to the automobile while it was on the crossing at the time in violation of Ga. Code § 94-507; by failing to observe the aforesaid ordinance of the City of Cartersville in traveling with a speed greater than 20 miles per hour in violation of Ga. Code § 94-507; by failing to stop the train at the time and place before striking the automobile; by failing to blow its whistle or horn while approaching and rounding the curve north of the crossing as it approached the crossing, the same being the only way in which an adequate warning of its approach at the dangerous rate of speed could be given; by striking the automobile and damaging it as set out in this petition; by failing to maintain a watchman at the crossing to warn the public and particularly the plaintiff and Bobbie Jean Smith of the approach of the train at the time and under the circumstances alleged; the ordinance of the City of Cartersville regulating the speed of trains at the time and place is known and identified as § 132 of the City Code of Cartersville, a copy of which is attached hereto as Exhibit A and made a part hereof.
The defendant filed an answer in which it denied any negligence and for further answer alleged that the collision was due either to the plaintiff's negligence or was an accident.
Upon the trial of the case the jury returned a verdict for the plaintiff and the defendant filed a motion for new trial. The judge denied the motion and the defendant excepts to that ruling.
1. Special ground 3 assigns as error the following charge: "Gentlemen, I charge you that in the preceding charge which I gave you where the allegation of the petition, in reading the allegation of the petition which alleged that it failed to blow its whistle and in the charge that I gave you in connection therewith, I charge you that it would be your duty to find that the railroad was negligent, if you find that it failed to blow its whistle or horn as alleged, and I charge you that would be a matter for you to determine as to whether or not it did, in fact, blow its whistle."
The charge was error because it instructed the jury they should find the defendant guilty of negligence if they determined that the defendant's employees failed to blow the train whistle or horn as it approached the crossing where the collision occurred. The collision occurring within the corporate limits of a town, the defendant was not required by statute to blow the whistle or horn as it approached a public crossing. Code § 94-507. Whether the commission of acts other than those prescribed by statute or a valid municipal ordinance constitute negligence is exclusively for determination by the jury and it is error for a trial judge to declare a particular act or omission to be negligence. Savannah, Florida Western Ry. Co. v. Evans, 115 Ga. 315 ( 41 S.E. 631, 90 Am. St. R. 116); Atlanta, Knoxville, Northern Ry. Co. v. Bryant, 110 Ga. 247 ( 34 S.E. 350); Fenelon v. Southern Ry. Co., 143 Ga. 26 ( 84 S.E. 57). While the judge instructed the jury as to the correct principle of law elsewhere in the charge, this did not cure the incorrect instruction, because the judge failed either to call the jury's attention to the error or to instruct them that the incorrect instruction was withdrawn. The jury should not be left to select between two conflicting charges. C. S. Nat. Bank v. Kontz, 185 Ga. 131 ( 194 S.E. 536); Central of Georgia Ry. Co. v. Deas, 22 Ga. App. 425 ( 96 S.E. 267).
2. The remaining special grounds of the amended motion for a new trial show no error. The only general ground of the motion for a new trial which was insisted upon was that the verdict was without evidence to support it. While the evidence was in conflict, it amply authorized the verdict.
Judgment reversed. Felton, C. J., and Nichols, J., concur.