Opinion
35723.
DECIDED JULY 14, 1955.
Action for damages. Before Judge Thomas. Coffee Superior Court. March 3, 1955.
Hull, Willingham, Towill Norman, H. J. Quincey, for plaintiff in error.
Ewing Farrar, Will Ed Smith, contra.
1. The petition alleged a cause of action against a general demurrer and the court did not err in overruling the general demurrer.
2. The special demurrer calling on the plaintiff to allege with more particularity the speed of the plaintiff's husband's truck at the time it collided with the defendant's train is meritorious and the court erred in overruling such demurrer.
DECIDED JULY 14, 1955.
Mrs. Emmie Lee McCranie sued Alfred W. Jones as receiver of the Georgia Florida Railroad Company for damages for the death of her husband allegedly caused by the negligence of the railroad company. The original petition alleged: that the defendant railroad company owns and operates a line of railway tracks in Coffee County, Georgia; that the plaintiff is the lawful widow of Herbert McCranie; that said railway tracks cross U.S. Highway No. 441 in a general northeasterly-southwesterly direction at a point about three-fourths of a mile north of the northern city limit of the City of Douglas, Georgia, in Coffee County; that said highway is now and was on April 29, 1954, a public highway open to the use of the general public, is one of the chief highway arteries through the State of Georgia, and at said point of intersection with said railway tracks, the highway accommodates a large amount of interstate and interstate motor vehicle traffic, and during daylight hours is so extensively traveled at said point of intersection as to amount to a continuous stream and flow of motor vehicles across said tracks; that said traffic on the highway at the crossing is at least five thousand motor vehicles during each 24-hour day; that the defendant did on and prior to April 29, 1954, and does now operate only from four to five trains over said highway-railroad crossing during each 24-hour day; that at the northwest corner of the intersection of said crossing there is located a gasoline service station and metal scrap yard, around which there is now, was on April 29, 1954, and for at least 12 months prior to April 29th, a large number of junked and serviceable automobiles, a number of about four or five of such junked automobiles being on the defendant's right-of-way; that said automobiles and buildings were so placed, and the number of automobiles so numerous in quantity that the view of the operator of a railroad locomotive going northeasterly approaching said crossing is completely obstructed and such operator would be, was on April 29, 1954, and is now unable to see motor vehicles on said highway approaching said crossing from the north until the railroad locomotive has reached a point within the right-of-way of said highway; that the service station and automobiles thereabout absorb considerable sound, which renders it almost impossible for persons traveling in a motor vehicle on said highway approaching the crossing from the north to hear signals made by locomotives on their approach to said crossing; that the agents, servants and employees who operated a locomotive of the defendant at said crossing at or about 7:25 a. m. on April 29, 1954, knew, or by the exercise of ordinary care should have known of the heavy motor-vehicle traffic on said highway at the crossing and of the hazardous nature of the crossing, and that it is not a custom for highway motor-vehicle traffic to stop at the crossing, all of which conditions existed for more than 12 months prior to April 29, 1954; that there was not on April 29, 1954, and is now no sign, light, signal or watchman at said crossing to indicate the approach of a train to the crossing upon said tracks; that at about 7:25 a. m. on April 29, 1954, the plaintiff's husband, Herbert McCranie, was driving his Reo truck with semi-trailer on U.S. Highway No. 441, traveling south, and when said truck reached the said crossing hereinbefore described, a Diesel locomotive owned by the defendant and being operated by its agents, servants and employees, traveling northeasterly on said tracks with boxcars attached, ran out into and upon said highway right-of-way at a speed of at least forty miles per hour without blowing any signal, ringing any bell or having a watchman at said crossing to warn the plaintiff's husband and other motor-vehicle traffic on the highway of the approach of said train, and the train and truck collided at said crossing, the impact killing the plaintiff's husband instantly and completely demolishing said truck; that the agents, servants and employees of the defendant so operated the locomotive when they knew, or by the exercise of ordinary care they should have known, that they should have kept the locomotive under control, and should have had a member of the train crew precede the locomotive to said crossing and warn highway traffic of the approach of the locomotive; that if such had been done the plaintiff's husband would have been warned of the approach of the train and the collision would not have occurred; that the defendant was guilty of the following specific acts of negligence: (a) In failing to blow at the crossing the whistle of the locomotive, two long blasts, one short blast, and one long blast, loud and distinct, at a point four hundred yards from the center of the crossing as required by Ga. L. 1947, p. 479, which failure constitutes negligence per se; (b) In driving said locomotive and train, in approaching, and upon said highway under the facts and circumstances herein set out without having said train under such control that it could be brought to a stop to avoid injury and death to persons at the crossing, and especially the plaintiff's husband; (c) In driving said locomotive and train upon said crossing at the rapid and excessive speed of forty miles per hour; (d) In failing and neglecting to have a member of said train crew or some other watchman at said crossing to warn highway traffic of the approach of said locomotive; (e) In taking the right of way over highway traffic in violation of the custom and practice of highway travel at said crossing; (f) In not having any signal device at said crossing to indicate the approach of a train to said crossing; that the defendant's negligence was the proximate cause of the collision.
By amendment the plaintiff added the following allegation: "At the time the plaintiff's husband reached the highway-railroad crossing he was driving at a speed of not more than 30 miles per hour."
The defendant's general and special demurrers were overruled, and it excepts.
1. The petition stated a cause of action as against a general demurrer. Under the allegations and with proper proof, a jury would be authorized to find that the railroad company was negligent in failing to signal for the crossing by the blowing of a train whistle as required by Ga. L. 1947, p. 479; that under the circumstances and conditions which constituted a blind crossing the defendant was negligent in not having the train under control (see Georgia Northern Ry. Co. v. Rolling 62 Ga. App. 138 (1), 8 S.E.2d 114); that under the circumstances the defendant was negligent in not flagging the crossing or having such other warning at the crossing as the exercise of ordinary care would require. While the petition alleges that certain obstructions at the crossing rendered it almost impossible for persons approaching the crossing on the highway from the north to hear any train signals, even construed most strongly against the petitioner, it is not alleged that it was impossible to hear such signals as would keep the failure to blow the whistle as required by law from being a proximate cause of the collision. Under such allegation the plaintiff could prove that in spite of the obstructions a signal could still have been heard if one had been blown.
It is contended by the plaintiff in error that the petition shows that the plaintiff's husband was guilty of such negligence as would bar a recovery by her. We do not agree with such contention. The cases most strongly relied on by the plaintiff in error are not in point. They are cases where the defendant's train, either stopped or moving, had blocked the crossing, and the plaintiff had collided with the train. The questions involved in such cases, of course, are materially different from the ones in this case where the crossing was clear as the deceased approached the crossing, and the train and truck collided as they both entered the crossing. This is not one of those cases where the questions of negligence and diligence are ones of law and not of fact. See Atlantic Coast Line R. Co. v. Sellars, 81 Ga. App. 381, 385 ( 59 S.E.2d 24), and Gay v. Sylvania Central Ry. Co., 79 Ga. App. 362, 368 ( 53 S.E.2d 713).
2. The petition as amended alleged: "At the time the plaintiff's husband reached the highway-railroad crossing he was driving at a speed of not more than 30 miles per hour." The defendant specially demurred to this allegation on the ground that the speed of the truck should be set out with more particularity. The court overruled the demurrer and the defendant excepts to that ruling. The court erred in overruling the demurrer. It cannot be said that the speed of the truck is not material to the case, and the defendant is entitled to have that speed alleged or an allegation as to why such speed cannot be alleged.
The court did not err in overruling the general demurrer to the petition.
The court erred in overruling the special demurrer treated in division two of the opinion.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.