Opinion
36938.
DECIDED JANUARY 28, 1958.
Tort; tractor and train collision. Stewart Superior Court. Before Judge Rees. September 18, 1957.
Dykes, Dykes, Marshall Clark, Thomas A. Clark, for plaintiff in error.
Hollis Fort, Jr., W. W. McKinnon, contra.
The rulings made in the body of the opinion are so succinctly stated that there is no need of headnotes.
DECIDED JANUARY 28, 1958.
J. L. Hollomon filed an action against the Seaboard Air Line Railroad Company for damages arising out of a collision between a tractor on which the plaintiff was riding and the defendant's train.
The petition alleged in part: that the defendant has its railroad line running through a field on the east side of Georgia Highway No. 55, the property of the petitioner, and that, at this point, the railroad maintains a field crossing for the use and benefit of the petitioner and his employees; that the crossing in the filed has been maintained and kept up and installed originally by the defendant; that the petitioner is the owner of certain lands lying on the east side of Georgia Highway No. 55, in Stewart County, Georgia, and near the City of Richland, and that he also resides near the tract of land; that the defendant has constructed across, over and upon the tract of land a certain railroad track; the track running in a north-south direction and leading into the City of Richland; that the highway hereinabove designated runs practically parallel with the railroad track and that both the highway and the track run, over, across and upon the lands of petitioner; that there is cultivated land owned by the petitioner between the highway and the railroad track; that there is other cultivated land lying beyond and to the east of the track; that for the purpose of affording the petitioner, his agents, servants, representatives, employees, and members of the general public access to the cultivable and cultivated lands, the defendant has constructed a certain crossing, leading over its railroad track, running through the lands; that the crossing was originally constructed by and has since been maintained by the defendant; that there are wooded areas and embankments along each side of defendant's railroad track running over, across, and upon petitioner's lands; that at the point of the crossing erected and maintained by the defendant, across the track, there is a certain wooded area on the east side thereof; that a person either on foot or riding a vehicle, approaching the crossing from the east, would have his vision of the track obscured until he was practically on the track; that his vision of the track would be most particularly obscured in viewing the track to the north of the private crossing, when approaching the crossing; that such obstruction existed and exists until a person or vehicle is practically on the track; that, however, upon entering directly on the track, the obstruction did not and does not obscure the view particularly in either direction; the physical characteristics of such obstruction being such that a person approaching the track, either on foot or riding a vehicle, could not and cannot see up or down the track until directly on the track and in the path of any oncoming train or trains; that a person, either walking or riding a motor vehicle, would find his eye level not over ten feet above the ground, and at such crossing, his field of vision in any direction would be only approximately half that of a person riding in a locomotive, whose eye level would be approximately twice the height of the person walking or riding a farm tractor or other motor vehicle; that the employees, servants, agents, representatives, section hands, and all other personnel of the defendant were well acquainted and familiar with the crossing, running across the defendant's railroad track on the lands of the petitioner; that the engineer and conductor on trains operated by the defendant and running along the line were acquainted with the crossing and had full knowledge that the petitioner, petitioner's agents, servants, representatives, and other members of the general public used the crossing as a means of access to the cultivated fields to the east of the track; that approximately 200 yards north of the field crossing through the property of the petitioner there is a public crossing where a certain county road running east to west crosses this railroad track, running north and south; that this crossing referred to as 200 yards north is a public crossing and is used by the public in general and has all signs and warnings at the crossing, as provided by law; that he lives in a house on the west side of Georgia Highway No. 55 and that, on the afternoon of October 24, 1955, he drove his tractor across the highway in an easterly direction into the field road which is approximately across from his home and did cross the railroad track after getting on said field road, going in an easterly direction; that he attended to whatever business he had to do on the west side of the field crossing and, upon completion of his duties, he started back to his home, going in a westerly direction; that upon approaching the crossing going in a westerly direction to get back home, as he approached this field crossing, at about 2:30 p. m., driving a tractor and going about five miles per hour, he looked to see if the train was coming, and having looked, could not see a train approaching; that he listened to determine if he could hear a train approaching and, having listened, he could not hear a train approaching; after having looked and listened, he attempted to cross the track and was struck by the front part of the engine of a certain train; that as he approached the crossing, he was riding and operating a farm tractor, and was traveling about five miles per hour; that the vehicle being a farm tractor was making quite a bit of noise, caused by the discharge of its exhaust; that the noise is normal and customary and to be associated with such a farm tractor; that this noise from the vehicle naturally tended to drown out lower noises, but that the noise created by the farm tractor is not equal to the noise of a train whistle, a train bell, or the engine of a train traveling under power; that he approached the crossing at a reduced speed and both looked and listened to see if he could see or hear a locomotive or train approaching; that he exercised every reasonable care and precaution in attempting the crossing and was in the exercise of ordinary care in attempting the crossing; that the train, which struck him as he started onto the track, was "coasting" or running under very little power; that the locomotive running and operating in this fashion created very little noise and that the noise of his farm tractor exceeded the little noise created by the locomotive, making it impossible for him to hear the train, even though he attempted to hear; that the wooded area and other obstructions made it impossible for him to see the train approaching, with his restricted field of vision, although he attempted to see; that he doubtless could have seen the train approaching had his eye level been increased only a few feet, but that, when riding on the seat of a farm tractor such as he was operating, the operator's eye level is less than ten feet above the ground and his field of vision thereby relatively restricted; that although he attempted to both see and hear the approach of the train he consequently neither saw nor heard the train and was struck by the locomotive as his tractor entered on the railroad track; that north of this field crossing there is a downhill grade for approximately 100 yards and that the train had cut off the power to coast downhill, thus making very little, if any noise; that the railroad track across his lands in Stewart County, Georgia, runs in a straight course for not less than 100 yards, going south, before it approaches the crossing at which petitioner was struck; that the view, from his elevated level of vision, seated or standing in the cab of his locomotive, of the engineer and any and all other members of the defendant's train crew was absolutely unobstructed in seeing down the track; over and above any and all obstructions, directly onto the road leading to and the crossing on which petitioner was struck; that said engineer and other members of the train crew did on this occasion see the petitioner attempting to cross the track and could have halted the train before it struck petitioner and his tractor, or that said engineer and said other members of the train crew, from their elevated point of vantage, could have seen petitioner as he attempted to cross the track had they been keeping a clear lookout ahead, as required by law; that it is the practice of the defendant in operating trains along the track to give the usual customary warning when crossing public crossings, but on this occasion there was no warning given as the train approached the public crossing 200 yards north; that the train crew gave no whistle or other warning at the public crossing 200 yards north of the crossing at which the petitioner was struck, and although there is no statutory duty resting on a railroad company to give warning of the approach of a train at a private crossing, the engineer in this matter was guilty of negligence in failing to give any signal by bell, whistle, or otherwise, and in failing to have the engine under control so that it could be stopped prior to striking the petitioner; and same constituted negligence as a matter of fact, the engineer full well seeing petitioner attempting to make a crossing and, in the face of that, charging headlong into him in absolute disregard for the destruction of human life and property; that on this occasion the train was pulled by what is known as a diesel electric engine and that, on this occasion, the headlight was not burning, although required by custom and practice of the railroad so to do; that upon the train striking the front of his tractor with the left front of the engine, that he was knocked off the tractor and the tractor knocked to the left of the train going south and completely demolished; that petitioner was knocked unconscious by the impact; that the tractor upon which he was riding had a market value of $1200 prior to the collision and that the tractor was totally demolished, but that he did receive $125 salvage value of the tractor, thereby sustaining a loss of $1075; that his hospital bill was $87 for the one week that he was confined in the hospital and that the has paid out $100 doctors bills, plus medical bills of $100; that he is a man sixty years of age and had an earning capacity of $250 per month before this collision on October 24, 1955; that he was a man of good health, considering his age; that the injuries are permanent and that this petitioner be allowed the sum of $1637 for said injuries and for pain and suffering; that the defendant was negligent in the following particulars; that the operator of the defendant's train was negligent in the operation of the train, in that he failed to keep a constant and vigilant lookout straight ahead for any person or property which might be crossing or attempting to cross the crossing; that the operator of the defendant's train was negligent in failing to have his train under such control as to stop it immediately to avoid doing injury to person or property on or approaching the crossing; that the operator of the defendant's train was negligent in that he failed to give any warning by sound, knowing his train was coasting and not making any noise so as to warn people of its approach; that the operator of the defendant's train was negligent in failing to have a headlight burning; that after ascertaining the presence of the petitioner at or near the crossing, said operator of the defendant's train was negligent in failing to check the speed of the train and have it under control so as to stop it, if necessary, to avoid the accident; that the operator of the defendant's train was negligent in failing to give sound signals as required by law at the public crossing immediately north of the field crossing; that the operator of the train was guilty of negligence as a matter of fact in that he gave no warning by whistle, bell, or otherwise, even after seeing, or being able to see had he only looked, the petitioner attempting to cross the track; by seeing the petitioner start across the track (or by having been perfectly able to see him from his elevated point of vantage had he looked) and continuing to charge his locomotive headlong into petitioner and his tractor, when he full well had the last clear chance and opportunity to avoid the collision, and could have easily avoided the same by having his train under control and by bringing it to a stop prior to striking the petitioner; by exhibiting utter disregard for human life and private property, by allowing his locomotive to run into and strike the petitioner and his tractor, when he could easily have avoided the collision by reversing his engine, sanding the track and applying the brakes to the locomotive and train.
Counsel for the defendant filed general and special demurrers to the petition as amended. The judge overruled these special demurrers and to this ruling the defendant excepts.
1. The defendant filed a special demurrer to paragraph 8 of the petition which alleges that the train was coasting and making very little noise. The demurrer insists that the allegation is irrelevant because it fails to show that the plaintiff was harmed by the coasting of the train. The judge properly overruled this demurrer because the allegation illustrates one of the circumstances under which the collision took place.
2. The special demurrers to paragraph 10 and subparagraph d of paragraph 19 of the petition should have been sustained. The paragraphs allege that the headlight on the train's engine was not burning at the time of the collision. The petition shows that the collision took place at 2:30 p. m. There being no allegation to the contrary it will be assumed it was a clear day. Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 355 ( 94 S.E.2d 612). Under these circumstances it was immaterial whether the headlight was burning or not. The demurrer to the allegation should have been sustained.
3. The defendant also specially demurred to paragraph 18 of the petition, insisting that the paragraph did not separately state the sum of damages sought for permanent injuries and those which were alleged for pain and suffering. These being general damages it is not necessary that they be alleged separately. Hall v. Browning, 195 Ga. 423, 428 ( 24 S.E.2d 392); County of Bibb v. Ham, 110 Ga. 340 ( 35 S.E. 656).
4. There was a special demurrer to subparagraph a of paragraph 19 which alleged that the operator of the defendant's train was negligent in failing to keep a constant lookout ahead. The petition alleges that the defendant constructed and maintained the crossing where the collision occurred and that its employees had knowledge of the fact that the plaintiff, his employees, and the public used the crossing. In Western Atlantic R. Co. v. Michael, 175 Ga. 1 (6) ( 165 S.E. 37) it is held: "Where persons habitually, with the knowledge and without the disapproval of the railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of the custom, are bound, on a given occasion, to anticipate that persons may be upon the tracks at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence." If the alleged facts in the present case were supported by evidence a jury would be authorized to find that the operator's failure to keep a constant lookout ahead while approaching the crossing constituted a lack of ordinary care and diligence. The judge properly overruled the demurrer to this allegation.
5. Subparagraph b of paragraph 19 alleged that the operator was negligent in failing to have the train under such control as to be able to stop it immediately to avoid doing injury to the plaintiff. While the operator of the train is required to use ordinary care when approaching a crossing, there is no absolute duty upon him to stop the train immediately to avoid someone upon the tracks. Atlantic Coast Line R. Co. v. Bradshaw, 34 Ga. App. 360 ( 129 S.E. 304). The judge erred in overruling the special demurrer to this paragraph.
6. There was also a special demurrer to subparagraph c of paragraph 19 of the petition which alleged that the defendant's operator was negligent in failing to give any warning of the train's approach to the crossing. The defendant contends the allegation should be stricken because there is no statutory duty resting on the operator of a train to give a warning when approaching a private crossing. In Southern Ry. Co. v. Slaton, 41 Ga. App. 759 (4) ( 154 S.E. 718) it was held: "While it has been held that there is no statutory duty resting upon a railroad company to give warning of the approach of a train to a private crossing ( McCoy v. Central of Ga. Ry Co., 131 Ga. 378, 62 S.E. 297; Willingham v. Macon Birmingham Ry. Co., 113 Ga. 374, 38 S.E. 843) a petition is not subject to special demurrer because it alleges negligence on the part of the defendant company in failing to give any signal by bell, whistle, or otherwise, and in failing to have the engine under control and to check the speed of the train upon approaching a private crossing, where, as in the instant case, such facts were not set forth as constituting a violation of any statutory duty of the defendant, but as constituting negligence as a matter of fact, under the surrounding facts and circumstances set forth." Under the authority of the above holding the special demurrer is without merit.
7. There was a special demurrer filed to subparagraph e of paragraph 19 of the petition which alleged that the operator, after ascertaining the presence of the plaintiff, was negligent in failing to have the train under such control as to be able to stop prior to the collision. This allegation is a conclusion because it neither pleaded the distance for which the defendant was able to see the plaintiff nor the rate of speed at which the train was traveling. There being no facts upon which to base the operator's ability to stop the train the allegation was subject to special demurrer.
8. The judge erred in overruling the special demurrer to paragraph 9 and subparagraph f of paragraph 19 of the petition, which alleged that the operator of the train was negligent in failing to sound signals as required by law at the public crossing immediately north of the crossing where the collision occurred. For the violation of a statutory duty to be negligence as to a particular person, he must come within the class that the statute was intended to protect. Platt v. Southern Photo Material Co., 4 Ga. App. 159 (2) ( 60 S.E. 1068). The failure to sound a signal at the public crossing is not negligence as to this plaintiff because the blow-post law raises no duty as between the train company and people who may be on the track elsewhere than at a public crossing. Atlanta Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369 (4) ( 20 S.E. 550, 26 L.R.A. 553, 44 Am. St. R. 145).
9. Paragraph 4b alleges: "Petitioner shows that the employees, servants, agents, representatives, section hands, and all other personnel of the defendant were well acquainted and familiar with said crossing, running across said defendant's railroad track on the lands of the petitioner. That the engineer and conductor on trains operated by the defendant and running along said line were acquainted with said crossing and had full knowledge that the petitioner, petitioner's agents and servants, representatives, and other members of the general public used said crossing as a means of access to the cultivated fields to the east of said track." The defendant insists that this allegation was a conclusion. With this contention we cannot agree. This paragraph was an allegation of fact and not subject to the criticism made by the special demurrer.
10. Paragraph 8a alleges: "Petitioner further alleges that the railroad track across his lands in Stewart County, Georgia, as hereinbefore located and described, runs in a straight course for not less than 100 yards, going south, before it approaches the crossing at which petitioner was struck. That the view, from his elevated level of vision, seated or standing in the cab of his locomotive, of the engineer and any and all other members of the defendant's train crew was absolutely unobstructed in seeing down said track; over and above any and all obstructions, directly onto the road leading to and the crossing on which petitioner was struck; and that said engineer and other members of said train crew did on this occasion see the petitioner attempting to cross said track and could have halted said train before it struck petitioner and his tractor. Or, that said engineer and said other members of said train crew, from their elevated point of vantage, could have seen said petitioner as he attempted to cross said track had they been keeping a clear lookout ahead, as required by law so to do." This paragraph is subject to demurrer because paragraph 4a alleged that a wooded area obscured the view of the railroad tracks so that a person approaching the crossing could not see the train approaching. Under the same reasoning the operator of the train would not be able to see a vehicle approaching the crossing. While the operator would be at a more elevated position their range of vision as to each other would be the same. Obviously, each would have the same opportunity of viewing the other. Cowan v. Georgia R. Bkg. Co., 52 Ga. App. 677, 681 ( 184 S.E. 635); Reynolds v. Mion Murray Co., 93 Ga. App. 37, 40 ( 90 S.E.2d 593).
The last sentence of paragraph 4a was subject to special demurrer and should have been stricken for the reasons stated above.
11. The defendant specially demurred to that part of paragraph 9a which alleged that the operator of the train was negligent in failing to give a warning at the private crossing. This demurrer is without merit for the reasons stated in division 7 of this opinion.
12. There was a demurrer filed to that part of paragraph 9a which alleged that the operator of the train was negligent in failing to have the train under such control as to enable him to stop prior to striking the petitioner. This demurrer should have been sustained under the rule in division 8 of this opinion.
13. (a) The defendant specially demurred to subparagraphs g, h, and i of paragraph 8 collectively in one special demurrer. Subparagraph g of paragraph 8 alleged: "That the operator of said train was guilty of negligence as a matter of fact in that he gave no warning by whistle, bell, or otherwise, even after seeing, or being able to see had he only looked, the petitioner attempting to cross said track." Under the authorities of Southern Ry. Co. v. Tudor, 46 Ga. App. 563, 576 ( 168 S.E. 98); Southern Ry. Co. v. Slaton, 41 Ga. App. 759, supra, the jury would be authorized to find that the operator was negligent if the evidence shows that he failed to sound a warning after seeing the plaintiff attempting to cross the tracks. The demurrer to the allegation was properly overruled.
(b) The special demurrer being to all three subparagraphs collectively it must be overruled because at least one of the allegations it attacked was not subject to the criticism. Southern Ry. Co. v. Phillips, 136 Ga. 282 (1) ( 71 S.E. 414).
14. The petition alleged facts sufficient to present a jury question as to whether the operator of the defendant's train took such precaution to prevent injury to the plaintiff as would meet the requirements of ordinary care and diligence. Southern Ry. Co. v. Tankersley, 3 Ga. App. 548 ( 60 S.E. 297); Vaughn v. Louisville Nashville R. Co., 53 Ga. App. 135 ( 185 S.E. 145); Atlantic Coast Line R. Co. v. Bradshaw, 34 Ga. App. 360, supra; Louisville Nashville R. Co. v. Arp, 136 Ga. 489 ( 71 S.E. 867); Georgia Southern Fla. Ry. Co. v. Wilson, 93 Ga. App. 94 ( 91 S.E.2d 71); Central of Georgia Ry. Co. v. Sharpe, 83 Ga. App. 12 ( 62 S.E.2d 427). The judge properly overruled the general demurrer to the petition.
Judgment affirmed in part, reversed in part. Felton, C. J., and Nichols, J., concur.