10 S.E.2d 141 | Ga. Ct. App. | 1940
The petition set out a cause of action against both defendants, and the court erred in sustaining the demurrers.
The defendants' general demurrers to the petition were sustained, and the action was dismissed. To this judgment the plaintiff excepted. It is alleged that the plaintiff's husband was employed by a highway contractor as a crossing watchman, and that his duties consisted in maintaining a lookout for trains passing over the crossing where the defendant's main-line railroad tracks and a switching track, maintained jointly by the defendant and another railroad company, and other railway tracks cross a public highway, in order to warn persons traveling on the highway of approaching trains; that on the night the plaintiff's husband met his death a passenger-train of the defendant was approaching on the main-line railway of the defendant, and the plaintiff's husband was standing in the highway between this main-line and the joint switching track, warning travelers on the highway of the approach of the passenger-train, and that as the passenger-train came upon the crossing the plaintiff's husband was forced to step back so as to avoid being near the moving passenger-train, and stepped back upon the joint switching track above referred to. The petition shows that the switching engine with some cars had previously passed over the crossing on this joint track, and had done some switching some distance below the crossing; that as the plaintiff's husband stepped back upon the joint track in order to avoid the passenger-train the switching engine, pushing several cars, backed upon the crossing and ran over and killed him; that this switching engine and cars slowly and noiselessly approached the crossing at night, without sounding a warning, and without having a flagman or other trainman stationed thereon in a position to enable him to warn the plaintiff's husband and to signal the engineer to stop the train; and that the plaintiff's husband was not aware of and could not hear the approaching engine and cars, because his attention was directed to *805 the performance of his duties at the crossing, and because of the noise made by the passenger-train as it passed over the crossing and a near-by switch frog. It appeared from the allegations of the petition that the defendant railroad company and the defendant engine foreman were negligent, which negligence was the direct and proximate cause of the death of the plaintiff's husband, in permitting the switching engine to back over the crossing, pushing the freight-cars, when the passenger-train of the defendant railroad company was crossing from the opposite direction, without giving warning of its approach to the plaintiff's husband, who was in a perilous position, engaged in performing his duties, without having an employee of the railroad company stationed on such switching train for the purpose of signaling the engineer to stop the train and giving warning to persons on the crossing of its approach.
The allegations of the petition do not affirmatively show, as contended by the defendant, that the death of the plaintiff's husband was the result of his own negligence or failure to exercise ordinary care. The determination of this question, like questions of negligence, proximate cause, etc., is ordinarily for the jury. Brown v. Savannah Electric Power Co.,
Judgment reversed. Sutton and Felton, JJ., concur.