15 Ga. App. 842 | Ga. Ct. App. | 1915
Mrs. Louise Adeeb filed suit against tlie Atlantic Coast Line Railroad Company and the Georgia Southern & Florida Railway Company, alleging that she had suffered various injuries on account of a collision which occurred through the concurrent negligence of the defendants at a grade crossing in the city of Yaldosta, Georgia. Each defendant filed a special plea setting up accord and satisfaction, the issue raised by which was determined in each instance in favor of the plaintiff. The court, at the conclusion of the evidence for the plaintiff, granted a nonsuit as to the Georgia Southern & Florida Railway Company, but that company nevertheless filed a motion for a new trial of the issue raised by its special plea; and it brought the case to this court on exception to the refusal of the motion. The ease proceeded to a verdict and judgment against the Atlantic Coast Line Railroad Company, and that defendant filed its motion for a new trial not only of the issue determined by the trial on the special plea, but also of the issue raised by its plea to the merits. The motion was overruled and the Atlantic Coast Line Railroad Company excepted to that judgment, and also to the overruling of its demurrer to the plaintiff’s petition. We take up the various exceptions in the order in which they occur.
1. It is admitted in the brief for the plaintiff in error that the court did not err in overruling the general demurrer, which alleged that the petition set out no cause of action. In grounds 2 and 3 of the demurrer it is contended that the allegations of the petition
It appears, from an inspection of the 5th paragraph of the petition, taken in connection with the 16th paragraph, that the plaintiff distinctly alleges that the collision and the injury occurred because the servants and employees of each of the two defendant companies, in charge of the two locomotives and trains then being operated on the respective tracks of the defendants, “negligently attempted and endeavored to drive or cause the. said respective trains and locomotives to pass over the said crossing at the same time.” From the allegations in the 5th paragraph it would appear that the concurrent negligence of both defendants was necessary to bring about the disastrous results to the plaintiff which followed from the collision. Had the crew of either train observed proper caution, without regard to the question as to which train was properly entitled to precedence over the other in effecting this passage over the dangerous crossing, the injury could not have resulted, and hence the injury was necessarily a consequence of the concurrent negligence of both, though the proximate cause of the injury and the consequent legal liability therefor to the plaintiff might depend' exclusively upon the negligence of one. ■ Then from the 16th paragraph it appears that the train crews of both defendants
From ah analysis of these various allegations it can easily be seen that it required the negligence of the engine crews of both the defendant companies to bring about the collision. Had either engine come to a full stop 50 feet from the crossing, and then moved forward slowly, instead of at the rapid and dangerous rate of 15 or 20 miles per hour, and if the proper servants in charge’ of each engine had kept a careful lookout for the purpose of ascertaining the presence of another train near and in the act of passing over the crossing, and if each engine driver had not approached the crossing with his train at such a high rate of speed that he cOuld not arrest the movement of his train when he discovered the presence of the other train near the crossing, and if the employees in charge of each train had not attempted to pass over the crossing at .approximately the same time, no injury could have occurred. While, according to these allegations, if either defendant had observed proper care and caution, the injury would not have occurred, notwithstanding gross negligence on the part of the other, nevertheless it is obvious that it required the combined, conjoint, or concurrent negligence of both defendants to produce the injury; and the court did not err in overruling grounds 2 and 4 of the demurrer.
In the 3d ground of the demurrer it is contended that the petition does not clearly and distinctly set out the acts of negligence charged against the two defendants; but it appears to us that while
In the 5th ground of the demurrer it is contended that subsection. (a) of paragraph 16, which alleges negligence “because there was neither an automatic interlocking and derailing switch, nor a signal tower in which an operator was continually kept at the place where the separate tracks of the said defendants crossed each other,” should be stricken because the law which prescribes the duty of railroad companies where their tracks cross does not require this at the hands of the defendants. Section 2687 of the Civil Code provides that “whenever either or any of the railroads whose tracks shall cross in the manner herein contemplated shall place at such crossings modern automatic interlocking and derailing switches, and shall establish and maintain at such crossings signal towers in which an operator shall continually be present, it shall not be necessary for trains to stop at such crossings;” but otherwise the train must “come to a full stop within fifty feet of the crossing, and then move forward slowly.” So taking subsection (a) in connection with the rest of paragraph 16 of the petition, it is apparent that the negligence which the plaintiff intended to allege in this subsection was merely that the defendants, while having no automatic interlocking and derailing switch, and no signal tower at the point of crossing, nevertheless failed to stop their trains 50 feet away from the crossing, and to then move forward slowly towards the crossing. Conditions might conceivably exist that would require such devices, in the exercise of the care the law demands, even though no statute expressly provided for their installation and use at a grade crossing.
In the 6th ground of the demurrer it is contended that the allegation in' subsection (e) of the 16th paragraph of the petition contains a conclusion merely as to the speed of the respective engines, and fails to state at what speed the engines approached the crossing, and therefore the allegation is too general. In subsection (c) of that paragraph it is plainly alleged that the respective trains of the two defendants did not approach the crossing slowly, but approached at a “rapid and dangerous rate of speed, to wit, at the rate of 15 or 20 miles per hour.” This allegation may be taken
In the 7th ground of the demurrer it is contended that the petition is defective because it fails to show which of the two railroads, crossing at the point where the collision occurred, was first built, and therefore fails to show which of the said railroad companies was entitled under the law (Civil Code, § 2687) to have its train cross first at this crossing; that there was no negligence on the part of the defendant which first constructed its line of road in proceeding to cross the line of the other road. This ground of the demurrer does not appear to be insisted upon in the brief filed in behalf of the plaintiff in error. However, we may say here that the court did not err in refusing to sustain this ground, since it is obvious that the fact that trains on the road first built had, under the law, the right to cross first when trains on both tracks approached the crossing simultaneously would not excuse the agents and employees in charge of each train from the exercise of extraordinary care in an effort to preserve the safety of the passengers on that train, when by the exercise of such care the rapid approach of the other train towards the same crossing at a high rate of speed and in defiance of law could be discovered. The court therefore did not err in overruling the demurrer.
2. The next assignment of error in the bill of exceptions is as to the alleged insufficiency of the evidence to sustain the verdict on the special plea of accord and satisfaction. It is contended that a return or tender of the money received by the plaintiff in consideration of the execution of the release was necessary before bringing this action. The evidence as a whole authorized the inference, evidently drawn by the jury, that the money paid to the plaintiff, if accepted by her at all, was not accepted on account of the injuries which she suffered, and that when she signed the release offered in
3. The plaintiff in error excepts to the action of the court below ,in granting a nonsuit as to the Georgia Southern & Florida Eailway Company, and ordering the trial to proceed against the Atlantic Coast Line Eailroad Company alone. It appears from an inspection of the evidence in this case that there was concurrent negligence on the part of both defendants, and that both approached the crossing without due caution and circumspection. The train on the track of the Georgia Southern & Florida Eailway Company did not stop within fifty feet of the crossing, and in fact did not stop at all until it was struck by the train of the Atlantic Coast Line Eailroad Company. The evidence shows further that the Atlantic Coast Line Eailroad train stopped 50 feet from the crossing and then moved forward slowly towards the crossing, as required by law, though there is a variance in the testimony as to the actual rate of speed at which this train approached the crossing after it had first stopped and then renewed its motion. The evidence of the engineer in charge of the train of the Atlantic Coast' Line Eailroad Company clearly discloses that had he been on guard, carefully noticing the crossing and looking out for trains on the other track as he neared it, he could have stopped his train in time to prevent the collision, notwithstanding the negligence of the engineer in charge of the train of the Georgia Southern & Florida Eailway Company in speeding across the dangerous point without any preliminary stopping, and without checking its speed. The engineer of the Atlantic Coast Line Eailroad Company testified that he
From this testimony it appears that the proximate cause of the injury was the fact that the engineer in charge of the train of the Atlantic Coast Line Eailroad Company, after having complied with the requirements of law as to making a full stop 50 feet from the crossing, started up his train to approach the crossing more slowly, and having, as he expressed it and as he concluded, * complied with everything perfectly,” and seeing nothing approaching on the other railroad track from the south, he concluded the track was his, and, having the right of way, that no one else “had any business to come up there without stopping,” and therefore he did not again look south, after starting the engine, but looked straight ahead, though he was on the south side of his engine. He says explicitly that he could see as far as the blow-post on the Georgia Southern & Florida Eailway track, 50 feet south of the crossing, at the time he stopped his engine and looked south, and if he had then observed anything on the track, he could have stopped his train instantly with his air-brakes, going at the slow rate of speed at which the train was then moving; but seeing nothing at the time he started his train, he never again looked1 and ran into the train that was crossing in front of him, without ever having actually seen that train until the shock of the collision attracted his attention. There was testimony, from a witness who was in the passenger-coach behind the engine, that it was possible to see down the Georgia Southern & Florida Eailway track a distance of 30 or 40 yards from the crossing, and that in his opinion “the Coast-Line engineer could have seen the cars and the engine of the Georgia Southern at least 50 yards down the track.55 Another witness stated, that he was in the second-class coach at the back, and saw the Georgia Southern & Florida Eailway train through a window, that the Atlantic Coast
4, 5. (a) That ground of the motion for a new trial which complains that the court charged that under certain circumstances named, the jury should return a verdict in favor of the defendant, if the defendant “was not otherwise negligent,” whereas the court should have instructed the jury to return such a verdict if they found certain facts to be true, and found that the defendant “was not otherwise negligent, as charged in plaintiff’s petition,” is without merit, when this statement is taken together with the entire charge. The jury must have understood from the charge as a whole that the court limited their consideration of negligence on the part of the defendant to the particular negligence charged in the plaintiff’s petition, and the mere failure to qualify the statement in this one instance and in this connection is not such error as to. demand a reversal.
(5) The plaintiff in error insists that the court erred in refusing to give to the jury a requested instruction to the effect that if the jury believed, from the evidence, that the conductor and the engineer in charge of the train of the Atlantic Coast Line Railroad Company, on the 15th day of January, 1913, caused the train to come to a full stop within 50 feet of the point where that road
(c) The plaintiff in error further insists that the court erred in refusing to give a charge requested which was in substance as follows: that if the jury believed, from the evidence, that the conductor and the engineer in charge of the Atlantic Coast Line Railroad Company’s train, on the 15th day of Januaiy, 1912, caused that train to come to a full stop within 50 feet of the place where that road crosses the track of the Georgia Southern & Florida Railway Company, and then moved forward slowly, and that if they further believed from the evidence that the Atlantic Coast Line Railroad Company or its predecessors in title constructed its road and put its trains in operation before the Georgia Southern & Florida Railway Company constructed its road and put its trains in operation, then the train of the Atlantic Coast Line Railroad Company had the privilege to cross first, and if the injury of the plaintiff was due to the fact that the train of the Georgia Southern & Florida Railway Company did not come to a full stop within 50 feet of the place of crossing, and then move forward slowly, their verdict should be in favor of the Atlantic Coast Line Railroad Company.
The court charged the jury fully as to the right and privilege of the company which first constructed its line of road and put its trains in operation to cross first at a grade crossing, and as to the duty of those in charge of trains approaching such a crossing to come to a full stop within 50 fqet of the crossing and then move forward slowly, and specifically instructed them that if they be
It scarcely seems necessary to do more than state the proposition, in order to disclose the fallacy of the contention put forth in the two requests to .charge, which the court properly rejected. If the mere fact that under the law the trains of the Atlantic Coast Line Company had the right of way over trains on the intersecting track of the Georgia Southern & Florida Railway Company was a complete defense for lack of proper care on the part of those in charge of trains on the Atlantic Coast Line Railroad approaching the crossing, it would excuse absolute and utter recklessness even after the discovery of danger on the crossing on account of a disregard of law by the other railroad company, or would excuse, on the part of the employees of the Atlantic Coast Line Railroad Company when approaching the crossing, an entire absence of care to ascertain whether or not trains on the intersecting track were liable or likely to obstruct the same, or were being run at such a rapid rate of speed or in such a dangerous way as to jeopardize the safety of passengers on the Atlantic Coast Line Railroad Company’s train.
The trial judge, very succinctly and clearly put before the jury the respective rights of the parties, plainly advised them that no recovery could be had against the Atlantic Coast Line Company, unless the injuries resulted from negligence on its part, and very properly instructed them that notwithstanding the precedence to which the company constructing the first road was entitled under the law, this did not authorize those in charge of a train, and upon whose care and diligence depended human safety and human lives,
We think the trial was free from material error, and the verdict was authorized by the evidence.
Judgment affirmed.