57 Ga. App. 360 | Ga. Ct. App. | 1938
Lead Opinion
Mrs. J. L. Carter brought the present action for damages against L. R. Powell, receiver of the Seaboard Air-Line Railway, and J. L. Ross, its employee and engineer, alleging that she was injured by the negligent operation of one of its trains, being operated at such time by said J. L. Ross. The petition alleged that she was driving her automobile south on State route 3, a paved highway, just outside of Americus, Georgia, about 2 o’clock in the afternoon of November 17, 1935; that the railroad of the defendant running from east to west crosses said public road on a steep grade as such highway approaches a small creek to the south of the railroad right of way; that embankments eight to fifteen feet high existed on either side of the highway as it approached the railroad crossing and “it was impossible for one to see a train coming from the east going west . . until arrival immediately at the railroad’s right of way and crossing, or to hear the sound thereof by reason of the high hill, the pear and pecan orchards, and woodland on the north, the sound of a train approaching from the east would naturally drift towards the ravine of the branch, and especially would the sound be driven by the embankment immediately on the north of said railroad from said point from towards said highway crossing, and the vision of one was completely obscured from the point on the brow of the hill between said public highway leading down to said crossing going south, and the railroad approaching from the east;” that the said highway at this point was sixteen feet wide with shoulders on either side two or three feet wide, and just outside the shoulders and between them and the embankment was a water drain, one or two feet in depth, running from the crown of the hill to the railroad crossing, and at the railroad right of way a ditch was dug east and west and the water was turned at this point to prevent its Tunning over the tracks; that an embankment had been placed
The acts of negligence alleged were as follows: “(a) Said engineer failed to blow the whistle of said engine as required by law, and in the manner required by law, giving warning of said train's approach to said crossing four hundred yards before reaching the same, (b) That said engineer failed to otherwise exercise due care in approaching said crossing in order to avoid doing injury to any person or property upon said crossing, and in order to avoid doing injury to petitioner at said crossing, as alleged, (c) It is further shown and alleged that said defendants were negligent in failing to have said -engine equipped with a whistle of the size and dimension, and making the sound, and giving the force to the blast as required by statute, but the same was a smaller whistle giving out a less sound and blast than required by statute, (d) That said defendants were negligent and grossly negligent, and entirely failed to exercise due care in approaching said crossing, and especially after the perilous position of this petitioner was
The defendants filed general and special demurrers, all of which were overruled. The trial resulted in a verdict for the plaintiff. Defendant duly filed a motion for new trial which was amended and on the hearing the trial judge passed an order in part as follows: “Said motion is hereby sustained and a new trial granted upon the sole ground that as a matter of law, under the evidence, the plaintiff is not entitled to recover.” To this judgment of the court granting a new trial “upon said ground 'that as a matter of law, under the evidence, the plaintiff is not entitled to recover/ the plaintiff in the court below,- now the plaintiff in error, did then and there except and does now except and assign as error said ruling, order, and judgment of the court, and for cause of error says, that the court erred in sustaining said motion and in granting a new trial, because the evidence does support the verdict and under the law the plaintiff was and is entitled to recover.” The defendants by way of - cross-bill of exceptions except to the overruling of their demurrers. '
The court did not err in overruling the general demurrer. It is well settled that “questions as to diligence and negligence, including contributory negligence, and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except where such questions appear palpably clear, plain, and indisputable.” Southern Ry. Co. v. Slaton, 41 Ga. App. 759 (154 S. E. 718). The present case does not fall within the last-mentioned category. Assuming that the allegations of the petition are
In Southern Ry. Co. v. Slaton, supra, Judge Jenkins most ably wrote on this subject as follows: “There are some cases where it has thus been held that a petition was subject to demurrer because it showed on its face a plain, palpable, and indisputable example of an injury having been brought about by the lack of ordinary care on the part of the plaintiff, such as Georgia Pacific Ry. Co. v. Richardson, 80 Ga. 727 (7 S. E. 119), where the plaintiff, a trespasser, was walking a railway trestle; but the principle just stated and illustrated should not, under the great weight of authority in this State, be applied to the duty owing by a person, not a trespasser, lawfully undertaking to pass over a public or private railroad crossing. It is true that the Supreme Court has held that the court might properly charge the jury that ‘the precise thing which every person is bound to do before stepping upon a railroad track, is that which every prudent man would do under like circumstances/ and that ‘if prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means/ Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49); Columbus R. Co. v. Peddy, 120 Ga. 589 (3) (48 S. E. 149); Col
Able counsel for the defendant points out that the plaintiff, immediately before she reached the crossing, jerked her car abruptly to the right, causing her car to be thrown into the rear of the defendant’s train at a point not on the crossing, and that if the plaintiff had not so acted the accident would not have happened. The answer to this is that the inquiry is not whether if the plaintiff had not acted in the manner that she did the injury complained of would not have occurred, but is whether her acts were negligent and if so, whether they were or were not a contributing cause, or whether they were the sole proximate cause. If her acts in the transaction, including her abrupt departure from the highway, were not negligent, i. e. if she acted just as an ordinary prudent person would -have acted under similar circumstances, her conduct is to be considered only as a part of the normal course of human affairs. It matters not so much where the accident happened, as it does how and why the accident occurred at the place it did occur. The plaintiff, immediately before the accident, was approaching the crossing of the defendant on a public highway, and was therefore of the' class of persons to whom the defendant owed the duty of exercising care in the operation of its trains over such crossing. The-cases of Brinson v. Davis, 32 Ga. App. 37 (125 S. E. 736); Tidwell v. Atlanta, Birmingham & Coast Railroad, 42 Ga. App. 744 (157 S. E. 535); Eberhart v. Seaboard Air-Line Ry. Co., 34 Ga. App. 49 (129 S. E. 2), are clearly distinguishable upon their facts from the'present case. In Jones v. Seaboard Air-Line Ry. Co., 34 Ga. App. 772 (131 S. E. 128), the court did not have under consideration the sufficiency of the petition as against a general demurrer but only the question whether a nonsuit was properly granted. In the case of Western & Atlantic Railroad v. Crawford, 47 Ga. App. 591 (170 S. E. 824), the court had before it only the question whether a charge of negligence against the defendant railroad company that it failed to keep a proper lookout in approaching the crossing could have been the proximate cause of the injury to plaintiff (who was approaching the crossing in an auto
As already set forth, the petition alleged that just outside of the shoulder of the highway on the right going south, and between it and the embankment, there was a water drain one or two feet in depth running from the crown of the hill to the railroad crossing and at the railroad right of way a ditch had been dug east and west, at which point the water was turned to prevent its running over the tracks at the crossing; that an embankment had been placed along this ditch by the railroad to deflect this water to the west, and that except for this embankment at' or near the shoulders of the public highway a car could be safely driven to' the west between the railroad crossties and the embankment to the north. In paragraph 7 (f) of the original petition, above quoted, the maintainance of this embankment on the right of way of the defendant was charged as negligence. By way of amendment the above allegations were enlarged upon and it was alleged -that it was because of the existence of this embankment and drain ditch constructed on the right of way by the defendant, that the car of the plaintiff was caused to be thrown into the rear of the defendant’s train, after she had jerked the same off the road and onto the right of way in an effort to avoid colliding with the train. It is further alleged that “by reason of such negligent excavation next to the crossties, and the negligent elevation constituting the shoulder to the main water drain so negligently constructed and left open, constituted negligence:” A special demurrer was directed to the above allegations of negligence. This demurrer pointed out that the acts charged therein could not in the present case amount to negligence. We are of the opinion that this demurrer should have been sustained, and the allegations stricken in so far as they charged
The special demurrer directed to paragraph 8 (b) of the petition pointing out that the allegations contained therein were merely conclusions of the pleader, should have been sustained. “The office of a special demurrer is to eliminate all improper, superfluous, and unnecessary matter, or to compel the plaintiff to give the defendant definite and specific information with sufficient fullness and certainty to enable him to make his defense.” R. & D. R. Co. v. Mitchell, 95 Ga. 78 (22 S. E. 124). General allegations of negligence though good as against general demurrer, for the reason that it is not to be presumed that either the judge would direct the jury to give, or that the jury would give, a verdict without sufficient proof of specific acts amounting to actionable negligence (Murphy v. Lawrence, 2 Ga. 257 (2)), are not sufficient to withstand a special demurrer. Southern Ry. Co. v. Buchan, 137 Ga. 105 (72 S. E. 896); Macon, Dublin & Savannah R. Co. v. Stewart, 120 Ga. 890 (48 S. E. 354); Seaboard Air-Line Ry. v. Pierce, 120 Ga. 230 (47 S. E. 581); Sweat v. Foster, 28 Ga. App. 360 (111 S. E. 66); A. B. & A. Ry. Co. v. Whitehead, 31 Ga. App. 89 (119 S. E. 539); The Pullman Palace Car Co. v. Martin, 92 Ga. 161 (18 S. E. 364) 3 Harris v. Southern Ry. Co., 129 Ga. 388 (58 S. E. 873); Kemp v. Central of Ga. Ry. Co., 122 Ga. 559 (50 S. E. 465). It is manifest that the sweeping general allegation
We think that the special demurrer to paragraph 8 (h) should also have been sustained. It does not appear from the petition, construed most strongly against the pleader, that the cross-arm signs erected by the railroad were erected after the erection of advertising signs along the highway and therefore with knowledge by the railroad that they could not be seen. The petition having alleged the proper erection of said cross-arm signs, the fact that private citizens or others had allowed the erection of advertising signs on their property which would interfere with the cross-arm signs legally and properly erected being seen by persons approaching such crossing will not be chargeable as negligence to the railroad.
This headnote does not require elaboration.
In view of the fact that the judgment must be reversed on the cross-bill because of the error of the judge in overruling certain special demurrers, which error was materially harmful, it becomes unnecessary to pass on the questions presented in the main bill of exceptions. Central of Ga. Ry. Co. v. Bridwell, 34 Ga. App. 77 (128 S. E. 238). We may say however, that, even though the judge had committed no error in overruling the special demurrer, this court would not have upset his order granting the defendant a first new trial.
As appears from the statement of facts the trial judge granted the defendant’s motion for new trial. His order set out that the motion was granted because “As a matter of law, under the evidence, the plaintiff is not entitled to recover.” By Code, §§ 70-206, 70-208, a trial judge may, in the exercise of a sound legal discretion there vested, grant a new trial, although no errors of law may have been committed. The order of the trial judge in the present case is tantamount to a ruling by him that he should have either granted a nonsuit or directed a verdict for the defendant, neither of which he could of course do on a motion for new
Judgment reversed on the cross-hill of exceptions, main-hill dismissed.
Concurrence Opinion
concurring specially. I concur in the judgment of reversal, but can not agree to the ruling in division 4 of the majority opinion. I do not think that the allegation of the paragraph of the petition there dealt with can be said to be subject to the demurrer that it was a conclusion of the pleader, or that taking the allegations as true they could not amount to negligence.