Opinion
32553.
DECIDED SEPTEMBER 23, 1949. REHEARING DENIED OCTOBER 7, 1949.
Action for damages; from Richmond Superior Court — Judge G. C. Anderson. April 1, 1949.
Isaac S. Peebles Jr., Samuel E. Tyson, T. Reuben Burnside, for plaintiff.
Hull, Willingham, Towill Norman, for defendants.
In the absence of allegations as to what part of the engine was struck by the automobile, the petition fails to allege facts showing that the failure to flag the crossing or provide a warning device was a contributing or proximate cause of the damages sued for.
DECIDED SEPTEMBER 23, 1949. REHEARING DENIED OCTOBER 7, 1949.
Bonita E. Hensley instituted this action for damages against the Georgia Florida Railroad and Alfred W. Jones, receiver of said railroad company, for personal injuries received as a result of a collision between an automobile driven by the plaintiff and the defendants' train at a public crossing in the City of Augusta. The petition as amended alleged substantially the following: that about 12:10 a. m. on December 13, 1947, the plaintiff was driving a 1947 Buick tudor sedan along McIntosh or Seventh Street at or near the intersection of the tracks of the defendants' railroad and said street, and was proceeding in a northerly direction at a speed of 25 miles per hour; that at said time and place there was a drizzling rain which made visibility very poor; that this crossing is a dangerous one and that there are present practically at all times locomotives in this vicinity; that at that time the defendant was operating near said intersection a freight train which was traveling in an easterly direction; that there were present several locomotives adjacent to the crossing with bright lights burning and also automobiles with bright lights traveling in both directions along the street; that the employees of the defendants negligently and wilfully, without any warning, pulled the engine of one of its trains onto the crossing in front of the automobile driven by the plaintiff, and the plaintiff was unable to stop or prevent a collision between her automobile and the defendants' engine; that at the time of the collision there was an existing and valid ordinance of the City of Augusta which applied to this crossing and which provides in part: "when such engine, or engine and cars, is about to cross a street it shall be preceded not less than one-half width of the street by a flagman, with a flag on a staff by day, and with a lighted lantern by night and said flagman shall give notice of the approach of said engine, or engine and cars, by waving the flag by day or lantern by night, until he shall have crossed the entire width of the street, including the opposite sidewalk; and said engine, or engine and cars, shall not enter upon said street or sidewalk or the crossing thereof until said flagman shall have reached the middle of said street and given said notice"; that no warning or signal of any kind was given as required by said ordinance; that on account of a building along Seventh Street it was impossible for the plaintiff to see the engine "until said engine actually ran into and upon said Seventh Street, at which time it was impossible to bring said automobile to a stop before said collision"; that the only manner in which the plaintiff could have known of the presence of the defendants' train at said crossing would have been for the defendants' employees to have properly flagged the train as required by the above ordinance; that the plaintiff was at all time exercising due care as required by law and that the sole proximate cause of the collision was the gross negligence of the defendants in going on said crossing without having flagged said crossing and without giving any signal or warning of the approach of said engine.
The defendants filed a motion to dismiss in the nature of a general demurrer to the petition as amended, which the court sustained. To this ruling the plaintiff excepted.
From the allegations of the petition the only act of negligence charged against the railroad was the failure to signal the approach of the train at this crossing as provided for by the city ordinance quoted in the statement of facts. On demurrer it is necessary to construe the pleadings most strongly against the pleader. In doing so we reach the following conclusions: In absence of any allegations to the contrary, we must infer that the plaintiff was familiar with this particular crossing, that the plaintiff was aware that she was approaching same, and that she knew it to be a dangerous crossing; that the plaintiff was approaching the crossing at a speed of 25 miles per hour and that after seeing and becoming aware of the presence of "several locomotives adjacent to the crossing with bright lights burning," she continued, without reducing speed, onto the crossing; that the lights of the plaintiff's automobile were burning brightly and the brakes of her car were in good working order; that the lights of the defendants' engine were burning and the train was traveling at a lawful rate of speed as it entered the crossing; that the plaintiff's automobile collided with some part of the defendants' locomotive (it not being alleged what portion of the engine was struck); that there were present cars traveling in both directions from which it can be inferred that the plaintiff was driving in the right lane of traffic on the west side of Seventh Street, and having struck the engine while proceeding in the right lane of traffic, the front of the engine would necessarily have extended beyond the west side of the street, if the plaintiff ran into the rear of the engine; and that the plaintiff saw the engine at a safe distance in which to stop (it not being alleged at what distance from the engine plaintiff became aware of its presence). The allegation that, "it was impossible to see the engine with which the car in which plaintiff was riding in collided until said engine actually ran into and upon said Seventh Street, at which time it was impossible to bring said automobile to a stop before said collision," was merely a conclusion of the pleader. The plaintiff alleged that at the time of the collision "there was a drizzling rain which made visibility very poor." The effect of this allegation as a concurring proximate cause of the collision is nullified by the subsequent allegation that, "On account of said building . . it was impossible to see the engine . . until said engine actually ran into and upon said Seventh Street." Therefore, it is immaterial whether the weather conditions were ideal or inclement, as alleged, since the plaintiff's view would have been obstructed by the building regardless of the climatic conditions until the train entered upon the crossing. The plaintiff also alleged that a building along Seventh Street obstructed her view of the train until immediately prior to the collision. The only effect of such an allegation would be a circumstance to show the nature of the crossing with respect to the amount of diligence required by the operators of the defendants' train in approaching the crossing. The same amount of diligence was required by the plaintiff in that, construing the petition most strongly against her, she was aware of the crossing and of its dangerous nature, and, therefore, was inferentially aware of the fact that a train approaching the crossing from that direction could not be seen until it actually entered the intersection, and in the exercise of ordinary care should have anticipated that a train might be upon or approaching the intersection, and should have exercised her control over the automobile accordingly.
We are of the opinion that the facts alleged do not show that the failure of the defendants to signal as provided by the city ordinance was the proximate cause of the collision. The ordinance provided that a flagman shall precede the engine by not less than one-half the width of the street, and shall flag until he shall have crossed the entire width of the street, including the opposite sidewalk. If the plaintiff's automobile struck the rear of the engine, the defendants' flagman would have already crossed the intersection and would have been well beyond the western side of Seventh Street. If the plaintiff-failed to see the engine of the defendants as it traversed the entire width of Seventh Street with headlight burning, it would follow that she would not have noticed a flagman or other warning device in said street at even a greater distance away than when the engine crossed in front of her. Therefore, even if the defendants had flagged this crossing as provided by law or if it had provided the substitute device, the petition clearly does not show that the collision would still not have occurred.
The judgment did not err in sustaining the motion to dismiss in the nature of a general demurrer.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.