Opinion
39891.
DECIDED FEBRUARY 12, 1963.
Action for damages. Elberton City Court. Before A. S. Skelton, Judge pro hac vice.
Williford Grant, John W. Williford, William F. Grant, for plaintiff in error.
Erwin, Birchmore Epting, Howell C. Erwin, Jr., E. Freeman Leverett, contra.
Where under the facts pleaded the plaintiff proceeding at a very slow rate of speed and practically at a railway crossing nevertheless sees an approaching train so close thereto that he cannot cross in safety, and the petition alleges no facts requiring the conclusion that at such time the plaintiff could not safely stop his car and wait for the train to pass but on the contrary alleges that he accelerated the vehicle and attempted to cross the track, as a result of which a collision ensued, the petition must be construed as showing that the plaintiff, by voluntarily taking a known risk, was so negligent as to preclude his recovery.
DECIDED FEBRUARY 12, 1963.
W. H. Hoover filed an action in the City Court of Elberton against the Seaboard Air Line Railroad Company, alleging in substance that there is a public crossing in the City of Elberton where Campbell Street crosses the railroad at a 30-degree incline and that two buildings on the defendant's right of way completely obscure the vision of one crossing in a southerly direction until the driver's automobile is "practically at or on" the main line of the track; that the defendant failed to signal the approach of the train; that the plaintiff approached the crossing at a very slow rate of speed and was going two or three miles per hour and practically on the track when he saw the train, and the engineer could have seen the automobile, the train then being 400 feet from the crossing and traveling not less than 40 miles per hour in violation of a pleaded ordinance of the City of Elberton. Plaintiff, on seeing the train, pressed his accelerator and the engine choked down so that his station wagon stalled with the rear end resting on or near the southern rail of the crossing. The plaintiff then jumped out of the car and attempted to flag the train; the engineer proceeded until the train was approximately 60 feet from the crossing and then applied the brakes. The train hit and demolished the station wagon and proceeded approximately 700 feet before coming to a stop. The defendant was negligent in not keeping a proper lookout ahead, in not signaling the crossing; in violating the speed limit; in maintaining an obstruction barring the view of the crossing, and in failing to stop after the plaintiff's stalled vehicle became clearly visible to the operators.
General demurrers to the petition were sustained, and the exception is to this judgment.
1. Assuming that actionable negligence is alleged by those allegations of the petition asserting that the defendant was violating the speed limit and the defendant maintained buildings obscuring the visibility of persons approaching the crossing and that the engineer failed to exercise due care under the circumstances (including failure to signal the approach of the train) to avoid injury to a vehicle stalled on the track ( Southern R. Co. v. Lambert, 106 Ga. App. 691, 695, 128 S.E.2d 87), the plaintiff is still not entitled to recover if, by the exercise of ordinary care for his own safety, he could have avoided the negligence of the defendant after it became known to him. Code § 105-603; Moore v. Seaboard Air-Line R. Co., 30 Ga. App. 466 (3) ( 118 S.E. 471). If he voluntarily places himself upon a railroad track almost immediately in front of a rapidly moving train, with knowledge of the danger, thinking he has time to get across before the train reaches him, and he miscalculates, his own negligence must be taken as the sole proximate cause of his misfortune. Harris v. Southern R. Co., 129 Ga. 388 ( 58 S.E. 873); Lord v. Southern R. Co., 70 Ga. App. 273 ( 28 S.E.2d 299). Unlike Lambert, supra, the plaintiff's automobile was not stalled on the track before he knew of the approaching train, nor was it traveling at such a rate of speed that it could not stop at that time. Plaintiff in error argues on authority of Brown v. Savannah Electric c. Co., 46 Ga. App. 393 ( 167 S.E. 773) that an allegation that the plaintiff was "nearly on" the track, as in that case, or "practically on" the track, as in this case, at the time the approach of the train was discovered makes a jury question on the issue of contributory negligence. Brown, however, involved a nonsuit where the evidence was to be construed in favor of the plaintiff; this action is on demurrer, must be construed strictly against the pleader, and so construed shows that the vehicle, no matter how near the track it might have been, was not actually upon it; that at a speed of two to three miles per hour the plaintiff could have stopped almost instantly when he saw or should have seen the train 400 feet away. The petition also shows arithmetically that if the train was 400 feet away traveling at 40 miles per hour, and the station wagon was immediately at the tracks traveling only two miles per hour, either the train would have to slow down or the automobile would have to speed up in order to clear the track before the train reached the collision point. The plaintiff elected to do the latter and pressed down on his accelerator, thus choking the engine and stalling the automobile. Under the facts pleaded the engineer could not stop the train in the 400-foot distance involved, as, after application of brakes, the train proceeded a distance of 700 feet. The case is thus controlled by the rule that the plaintiff, in attempting to cross the track in the face of a known danger, was himself so negligent of his own safety as to preclude a recovery, and the trial court did not err in dismissing the petition on a general demurrer raising this issue.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.