Opinion
34497.
DECIDED APRIL 11, 1953.
Action for damages. Before Judge Monk. Sylvester City Court. December 8, 1952.
Ford Houston, Gibson DeLoache, Sam J. Gardner, Jr., for plaintiff in error.
R. B. Williamson, S. B. Lippitt, contra.
The petition, in an action by a guest against a railroad company for injuries sustained when the automobile in which the guest was riding collided with the defendant's train, which was partially occupying a public crossing, showed that the driver of the automobile could have seen the defendant's train on the crossing in time to stop before striking it, and thus showed conclusively that the defendant's alleged negligence, if any, did not contribute to or concur with the driver's negligence as the proximate cause of the plaintiff's injuries; and the court erred in overruling the demurrers to the petition.
DECIDED APRIL 11, 1953.
Walter Stains, Jr., a minor, brought this suit by next friend against Georgia Northern Railway Company. In his petition, the plaintiff alleged in substance the following: The defendant railway corporation is a common carrier operating a line of railroad from Moultrie to Albany, Georgia. The defendant's main line passes through the Town of Bridgeboro, Georgia; and the main street of that town is State Highway 112, which is 22 feet wide and paved, running from Camilla to Sylvester, Georgia. Proceeding from Camilla towards Bridgeboro and Sylvester, this highway curves to the left and then runs straight in a northerly direction for about 50 yards to the place where the defendant's main line crosses the highway in an east-west direction. The defendant's main line at this point is a double-track railroad. The tracks of the Georgia, Sylvester Camilla Railroad cross Highway 112 about 50 feet south of the defendant's crossing. There is an old wooden depot, approximately 60 feet wide, 60 feet high and 100 feet long, standing about 30 feet east of the tracks of the Georgia, Sylvester Camilla Railroad and about 40 feet to the right, or east, of the highway, and this building completely blocks off the view of a train approaching from the right, or east, on the defendant's main line to motorists traveling from Camilla to Bridgeboro and around the curve on Highway 112. This old building makes it impossible for one traveling north towards Bridgeboro on the highway to see the defendant's trains approaching from the right until he is within 35 to 40 feet of the defendant's main line, which also curves to the left about 100 feet before it crosses the highway. On the night of April 1, 1952, after dark and at about 8 p. m., the plaintiff was riding as a guest in an automobile driven by John E. Smoak; the plaintiff had no control over the operation of the automobile, which was proceeding from Camilla east on Highway 112. The driver had slowed the automobile for the curve, was proceeding around it at a reasonable speed not exceeding the limits prescribed by law, had passed over the tracks of the Georgia, Sylvester Camilla Railroad, and was about 40 feet from the defendant's crossing when the plaintiff and the driver of the car observed the defendant's one-car train on the track and being operated by an employee of the defendant. It was stopped on the tracks, blocking the right or east half of Highway 112. Another freight train of the defendant railroad was about 50 yards to the plaintiff's right, on one of the tracks, and was standing still with its headlights burning. The train parked on the right half of the highway was completely blocked [blacked?] out, with only a small electric light burning in front, and it was not visible to one approaching on the highway from the side. The driver of the car was not familiar with the crossing and highway, and had never driven across it before at night. When the plaintiff was about 40 feet from the tracks, and the automobile was on the right side of the road, another automobile appeared coming down the incline in the opposite direction, approaching the crossing from the opposite side, and the headlights on this automobile blinded the plaintiff and the driver of the car at about the same time. The driver of the automobile immediately slammed on his brakes and skidded the car into the right front of the parked train, and the plaintiff sustained certain serious injuries. At the time of the impact, the automobile was traveling at 28 miles per hour. The plaintiff's injuries were proximately caused by the negligence of the defendant and its employee in the following respects: (1) in that the locomotive was not equipped with a headlight consuming not less than 300 watts at the arc as required by law; (2) in that the locomotive was not equipped with a reflector not less than 23 inches in diameter as required by law; (3) in that the engineer, who had traveled over said crossing for more than six months, with full knowledge of the said obstruction and that his train was not properly lighted and was blacked out and blocking the right half of the public crossing, failed to exercise ordinary care and did not keep and maintain a lookout along the track and the highway, ahead of and to the sides of the engine, while within the Town of Bridgeboro; (4) in that the engineer failed to toll the bell of the locomotive as the train stood on a public crossing; (5) in that the engineer, upon discovering the headlights of the automobile in which the plaintiff was riding as it proceeded towards the crossing, failed to give any warning of the position of the train by bell, whistle or otherwise; (6) in that the engineer failed to warn the driver of the car in which the plaintiff was riding; (7) in failing to maintain automatic gates or electric bell or lights or other signal apparatus at a public crossing and in failing to maintain a watchman there; (8) in that the engineer failed to blow the whistle of the locomotive, or ring the bell, or wave a lighted lamp or lantern after he saw, or could have seen by the exercise of ordinary care, that the plaintiff and the driver of the automobile were in a place of danger; (9) "Plaintiff alleges that there was nothing whatsoever to obstruct or interfere with the vision of the engineer in charge of said train as it was parked and partially blocked said crossing, and said automobile was traveling a frequently and much traveled public highway, and in full view of said engineer for at least fifty (50) yards, and he failed to keep a sharp lookout ahead and give the driver of said car and plaintiff any warning whatsoever, and there was no reason whatsoever for said driver to anticipate the presence of a blacked-out train, unlighted, unattended, and partially parked on said highway, as aforesaid, and under said alleged circumstances, with no warning whatsoever to travelers"; (10) in parking and leaving an unlighted obstruction across a public highway at night; and (11) in maintaining a public crossing without providing the crossing with a light, bell, or other device, or a watchman, to warn travelers upon the highway that it was blocked. The plaintiff's injuries were alleged; he was 16 years of age, and he sought recovery of $75,000 as damages.
The defendant demurred to the petition generally and specially; and the plaintiff then amended by denominating the original petition as count one, and by adding thereto count two, which was the same in substance as count one, except that it was alleged in count two that the defendant's one-car train was on the tracks and was proceeding or creeping slowly from the plaintiff's right onto the crossing, at about ten miles per hour, and that the defendant's other freight train had passed over the crossing with its headlights burning and was standing about 150 feet away to the plaintiff's left.
The defendant's objection to the allowance of this amendment, and its demurrers to the first and second counts of the petition as amended were overruled, and the defendant excepted.
According to the allegations of the petition, the automobile in which the plaintiff was riding was 150 feet from the crossing after it had rounded the curve on Highway 112 coming north into Bridgeboro. The road ran straight from that point for 100 feet to another railroad crossing and then 50 feet further to the defendant's crossing. Although it is alleged that there was no automatic gate, electric bell, lights, or other signal apparatus at the defendant's crossing, it does not appear that there were no standard railroad crossing signs erected at the crossing as required by Code § 94-511, such as would give warning of the crossing and that a train might be upon it. Nor does it appear from the petition that the headlights on the plaintiff's automobile were not "capable of revealing a person, vehicle, or object at least 500 feet ahead in the darkness." Code (Ann.) § 68-316. It is alleged that the automobile was proceeding at a speed "not exceeding the limits prescribed by law," or 55 miles per hour (Code, Ann., § 68-301), and that, when the plaintiff and the driver were 40 feet from the crossing and had already crossed the tracks of the Georgia, Sylvester Camilla Railroad, they first observed the defendant's engine or one-car train blocking the right half of the highway. At the same time, it is alleged, they were blinded by the lights of an automobile approaching the crossing from the opposite direction. The driver then applied his brakes and was able to slow the automobile to 28 miles per hour by the time it had reached the crossing and had collided with the defendant's train. While it is alleged that the old depot building obstructed the driver's view until he was 40 feet from the tracks, it is also alleged in both counts that the automobile was in full view of the engineer for at least 150 feet, as there was nothing to obstruct or interfere with the vision of the engineer. These inconsistent allegations, when construed against the pleader, must be taken to show that there was no reason why the driver of the automobile could not also have seen the defendant's train, whether stationary or moving slowly, as soon as he came around the curve and when he was still 150 feet from the crossing of the defendant railroad. The driver was able to reduce his alleged speed to 28 miles per hour in a distance of 40 feet, and so, in a distance of 150 feet, he undoubtedly could have stopped. The petition shows that the driver could have seen the defendant's train in time to stop, but did not do so. His negligence in proceeding without checking his speed until he was 40 feet from the train, while the obstruction of the highway by the train on the crossing should have been apparent to him at a distance of 150 feet therefrom, was the proximate cause of the plaintiff's injuries. If there was any negligence alleged on the part of the defendant, it did not contribute to the plaintiff's injuries, for the petition shows that the crossing and the train itself should have been apparent to the plaintiff and the driver of the automobile in which he was riding in time to avoid striking it, irrespective of whether the train or engine was properly lighted or not lighted at all, or of whether the engineer was or was not keeping a lookout along the highway after he had begun to cross it and was upon it, or of whether warning was given in any manner. This case is controlled by the following decisions: Brinson v. Davis, 32 Ga. App. 37 ( 122 S.E. 643); Carroll v. Georgia Power Co., 47 Ga. App. 518 ( 171 S.E. 208); Hallman v. Powell, 60 Ga. App. 339 ( 4 S.E.2d 104); Bassett v. Callaway, 72 Ga. App. 97 ( 33 S.E.2d 112).
While it is true that in some of the above-cited cases it was not alleged, as it is in the present case, that the driver of the automobile was unfamiliar with the location and presence of the railroad crossing in question, nevertheless, under the circumstances of the present case, including the alleged presence of an old depot, the lack of allegations of the absence of standard railroad-crossing signs, and the presence of another train burning its lights nearby on the tracks as well as the presence of the one-car train on the crossing, with no reason shown why it was not sufficiently illuminated and made visible by the lights of the car in which the plaintiff was riding, it cannot be said that the present case is distinguishable from those above cited. Whether or not the plaintiff or the driver of the car was familiar beforehand with the location of the crossing, the circumstances as stated above were sufficient to give warning of the presence of the crossing and the train standing on it, but the driver failed to heed these circumstances until it was too late.
Most of the cases cited and relied upon by the plaintiff, or defendant in error, are those in which atmospheric conditions of fog, murk, smoke, mist, or rain affected the driver's vision so as to prevent him from seeing a crossing already occupied by a train until it was too late to stop. See Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332 ( 136 S.E. 533); Gay v. Smith, 51 Ga. App. 615 ( 181 S.E. 129); Southern Ry. Co. v. Lowry, 59 Ga. App. 109 ( 200 S.E. 553); Shelley v. Pollard, 55 Ga. App. 88 ( 189 S.E. 570); Courson v. Atlanta, Birmingham c. R. Co., 70 Ga. App. 318 ( 28 S.E.2d 313). In cases such as these, the driver's familiarity or lack of knowledge of the presence and location of the crossing is a determinative fact (compare Evans v. Georgia Northern Ry. Co., 78 Ga. App. 709, 52 S.E.2d 28, with Gay v. Smith, supra); but where, as here, there is nothing shown which prevented the driver from seeing the crossing in time to stop if it was occupied and obstructed, whether or not the driver was familiar with the crossing is hardly material.
In Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708 ( 160 S.E. 131), the driver saw the train on a crossing as soon as it was in the clear range of his vision, but was unable to stop in the remaining distance to the train, and it was held that his petition set out a cause of action. In the present case, it does not appear that the driver of the car in which the plaintiff was riding saw the defendant's train when it was first within the range of his vision and when he was 150 feet from the crossing, nor does it appear that he would have been unable to stop the car in that distance.
The petition shows that the negligence of the plaintiff's host was the proximate cause of the plaintiff's injuries, and that the negligence of the defendant, if any, neither contributed to nor concurred with the driver's negligence in causing the injuries to the plaintiff. Nor did the allegation that an automobile was approaching from the opposite direction render the railroad company negligent. Therefore, neither count of the petition sets out a cause of action against the defendant railroad, and the court erred in overruling the general demurrers thereto.
Judgment reversed. Felton and Worrill, JJ., concur.