*1 dеmurrer sustaining The trial court not err in dismissing petition. concur. Carlisle, J., Gardner, J.,P. Judgment affirmed. May 195 Decided May Rehearing 1959. denied in error. Kunes, G. Gerald & Coleman, Barham Franklin, Forrester, Eberhardt, B. B. H. Eberhardt, contra. LINE
37561. ATLANTIC COAST RAILROAD COMPANY al. et v. STUDDARD et al. April 30, 1959 Decided
Rehearing May 26, 1959. denied *2 plaintiffs Weldon M. Boyd, A. in error. Kelly, F. Embry A. Jenkins, Evans, Jr., Dunaway, Randall & er, Shelf Wm. er, Orrin Roberts, contra. Shelf Judge. plaintiff for the Counsel contends
Nichols,
on the railroads’ demurrers had been
judgment
prior
rendered
appearanсe of the case
court, and,
to the first
before this
exceptions
not file a cross-bill of
since the railroads did
Witcher,
of
by
judgment
of error filed
writ
overruling
the trial court
demurrers is now established as
subject
support
of
to review.
the law the
and is
In
by
he
exemplified
of
contention
cites cases
Carmichael Tile
this
(2) (100
v.Co.
McClelland,
This contention in is without because the present necessary parties prior error in the case were not to*the (Anderson appeal by alleged joint tortfeasor their Williams, 95 App. 684, citаtions), whether judgment complained appeal of in the first or was affirmed liability plaintiffs reversed it would not affect the in error here, since, original shows, as the record file in this by the motion to dismiss filed the defendant Witcher сontended plaintiff’s petition only that the to set failed forth a cause of against Moreover, action him. relied by the cases the de- support fendant in error in rulings the contention right case, court, wrong, are nоw law the appeal are where there been an judgment cases had from a final (not one would have been final contended rendered as plaintiff by error), plaintiff in or cases where the in error the same in both of error. writs lower judg court contends that ment App. 513, of this Witcher Studdard, 646) part: negligence held in “The or lack negligence parties of all are deter questions concerned by jury,” controlling question presented mined is as to the by judgment writ of error dealing with the trial court demurrer of the defendant railroads. The record on file in court Witcher this v. Stud dard, supra, only question presented that the for decision shows against was whether the set fоrth a of action cause driver If defendant host Witcher. set forth a cause of action Witcher and no demurrers were or in filed railroads, sisted on and none then before were this jury question presented toas all Accord defendants. *3 ingly, appeal the decision on first the is not established as the case law the as defendant railroads. plaintiff’s petition
The showed that guest the deceased awas being operated by in an automobile the that Witcher, defendant atmospheric because of conditions, though even the automobile operated by the equipped proper defendant Witcher was headlights, headlights such clearly would not an reveal un- lighted object more than ahead, 50 feet and the defendant Witcher did not see the train of the defendant the railroads crossing was feet from the crossing, until he 50 that because speed оf his other of negligence, acts and that because of alleged negligence of plaintiff’s the defendant railroads daughter was killed. alleged negligence
The of the railroads fact was based they give failed to any warning of the fact that the train approaching crossing highway night at after estab- lishing a custom of their over operating trains the line only so daylight County to lull hours as the citizens Walton into and the defendant Witcher а belief no trains would operated night. at 612 Georgia Co., App. R. Ga. 712 709, v. Northern 78
In Evans (52 clearly 28), appears E. held: “It from the S. proximate present case that the sole cause petition operator autоmobile, collision was the failure to exercise knowledge existing, the conditions then with full striking so to avoid ordinary care and control the automobile as actually proceeding across intersection.” the train that was were very facts in similar to the facts in the case judice. Coxwell, Atlantic Line R. v. Ga. sub In Coast 93 (91 App. 159, holding 164 in the above cited expressly Therefore, present case is case was overruled. adversely to defendant railroads, controlled not err demurrer of court did “There, are circumstances railroads, because, where of others ob safety require care for the would a railroad due place guаrd, light, or some other warn structing crossing give ing proper point notice for the time Georgia Ry. Co., obstructed. Mann v. Central crossing is App. (160 Line R. Co. 708, 131); E. Atlantic Coast (81 App. 740, 89 Ga. S. E. 2d An illus Marshall, ‘misty morning.’ foggy tration of circumstances is such 129).” Gay Smith, Savannah Ry. Newsome, &c. Co. v. peti presented by jury question
In the case a some provided tion as whether the railroads should have the failure warning they provide, did and whether death provide proximate cause of the warning such a was a daughtеr. plaintiff’s filed to special demurrers, A careful examination of the amended, originally filed and special shows that which were overruled the trial court Accordingly, without merit. demurrers were *4 special demurrers. err railroads’ not the defendant for new of amended motion grounds 1 and 2 Special charge contained ex from complain excerpts of slips mere manifestly of trial court which were pressions considered stаtements, which, when tongue or inadvertent of the harmful have charge of could not remainder with the statement, or mere error. “An inadvertent to the complaining prejudicial not tongue, the judge’s of slip City grant of trial.” Sum requirе a new party, does not of (7) Sellers, merville v. charge excerpt from the ground complains an
Special for its jury that was determi court instructed wherein at given the cross warning required to be was nation as what if the аny particular statutory warning, ing, in addition and. have been particular warning some should jury determined that failure give then the ordinary care, exercise of given in the negligence. warning would be Line R. principle pronounсed in Atlantic Coast Under the charge complained of 159, supra, Coxwell, 93 question error, for such the- determination was not was jury. complains excerpt charge of an from Special ground 4 guest duty passenger of the to dis dealing with the deceased of the protect against negligence herself host cover and charge not in accord with the driver. Such was App. 793, principles Harrell, forth in set Wilson S. E. Special grounds of the amended motion for new 5 and 19 jury charge wherein the complain excerpts from the rung on the train not as the that, instructed the bell guilty approached crossing, the railroad would train per though engineer gave signal negligence se even (Ann.) required by whistle Code 94-506. as § (Ann.) requires signal, 94-506, giving Code § blowpost center- yards erect from the railroad public by the grade any with road used of an intersection en- railroad, and that the public crоssing the tracks train, but on the gineer give signal a described whistle ringing bell. require not such Code does section- jury could have case a pleadings Under the railroad, negligence, determined it was circumstances, but under the rung the bell it not have fact that the proof case where pleadings make a the defendant finding that rung bell would authorize a was not *5 614 jury determining first that negligent without
railroad was ring to the bell under required the railroad ordinary care circumstancеs. telling absolutely prohibits judge a from Georgia law
“The negligence, unless do or do not constitute jury what acts Savannah, be by negligence.” to act has been declared law (41 E. Ry. &c. 317 Evans, Co. v. 115 Florida Accordingly, the trial court erred Rep. Am. St. special grounds of complained of in these charge giving denying for trial and in railroads motion new amended trial. new judgment of assigns error on the
Special ground 8 mo permit polled to be beсause the refusing jury to poll to came too late. tion a discretion in concedes that the trial has
The movant polled, jury will, motion, whether be civil cases discretion did not exercise this argues that but in the case came after present case. The motion dis- published jury been and before the verdict had v. &c. decision Pan-American Co. charged, under the ini (59 proper time 12), Tudor, 81 Ga. However, motion. does disclose makе record published transpired between time verdict was what had poll ruling The jury was made. and the motion con- being shown, is as late, too more motion came without as with the failure to the exercise discretion sistent with the, ground of for Accordingly, the motion exercise discretion. error. trial fails to new show motion special grounds of the amended remaining charge excerpts have assign trial which error new harmful error carefully. аny and fail to disclose examined defendant railroads. again special tried neither be
Inasmuch as the must which, nor complains excessive, the verdict was ground 6, be trial will general grounds of the motion new the usual verdict for the except say passed demanded the evidence. the railroads was not court, de- plaintiff in the lower The contention judgment defendant here, in error fendant reversed new as to Witcher railroads Uniоn Tele- granted without merit. See Western is should graph Griffith, Ga. 551 Griffin Boss, part part.
Judgments Felton, and reversed affirmed specially. J., concurs. concurs J., Quillian, *6 Judge, concurring specially. specially I concur be- Quillian, opinion ground of the amended motion my only cause in error. new shows CY
37646. McCOY et INC. et al. OWENS, al Judge. Superior Where, August 15, 1957, on Quillian, of Floyd petition County corporation Court named filed its of trover defendants, jointly four and named sev erаlly, praying “process issue and that defendants be required court,” next term of this to which answer appear the clerk process requiring attached the defendants to days and answer the from the date within Feb proсess service of the on petition, the trial ruary 26, clerk to issue new 1958, quashed, ordering the process prayer petition; and in accordance process requir clerk thereafter, February 28, 1958, issued ing appear next term court defendants at the 1958; 1, Monday May, 1958, held the first and March again were is without served, defendants plaintiffs in jurisdiction defendants, those appeared moved specially who on March and quash process petition, dismiss the and and prayer denying motion, the trial court erred in process and service were defective, juris voidable, the defendant had not submitted legal requisite diction of waived the otherwise Corp., process McCoy Romy Hammes service. ). juris As court was without S. E. 2d proceedings all further of these diction defendants assignments nugatory, them, were,