60 Ga. App. 105 | Ga. Ct. App. | 1939
This action was brought by the children of James C. Collier for the homicide of their father. The petition alleged, in substance, that about 11:00 a. m. on March 21, 1938, James C. Collier was riding in an automobile by himself, and was traveling in a westerly direction in the City of Barnesville, on Market Street, which leads across the right of way of the Central of Georgia Railroad at what is known as Elm crossing; that the automobile occupied by Collier approached the public grade crossing, and as the automobile entered upon the railroad track at the crossing it was struck by a fast-moving southbound train of the defendant, which knocked Collier and the automobile in which he was riding violently from the right of way and inflicted mortal wounds on Collier from which he immediately died; that the defendant was negligent in that the train was being operated at a speed of 50 miles per hour or faster as it approached the crossing, and the engineer and fireman, the agents and servants of the defendants in charge of the train, failed to ring any bell or give any signal as said train approached the crossing, and failed to check the speed of the train as it approached the crossing; that defendant was negligent per se in. that the train was approaching the crossing at a speed of 50 miles per hour or faster, in violation of an ordinance of .the City of Barnesville which prohibits a train from crossing the street at a greater speed than ten miles per hour; that the engineer and fireman in charge of the train negligently failed to keep a proper
R. 0. Smith testified for the plaintiff, that he was delivering mail on the day of the accident, and was 200 yards up Elm Street from the crossing of the Central of Georgia Railroad where Collier was killed; that he saw the train come in; that it was traveling 40 miles per hour, in his opinion; that he did not notice any signal or hear any bell ringing or whistle blowing; that he did not hear the impact of the collision, but did hear the brakes of the train slammed on; that he noticed the three distress signals after the brakes went on; that he crossed the crossing twice a day; that there is an incline of about 20 per cent, to the tracks at the crossing from both streets; that from the start of the incline to the tracks is about 30 or 40 feet; that there are three tracks; that the train comes in on a curve on the inside track; that you could see better on the crossing than when you start up; that an approaching train can be seen 500 feet up the track; that there are two semaphore signals at the Elm Street crossing, which indicate when a train is in the block, but he did not notice them that morning; that what attracted his attention was that just as he came out of the walk the engine scooted by him; that the train, to the best of his knowledge, did not blow for the crossing; that there are no bells at the Elm Street crossing, and no signals except the semaphore signals which are for railroad men; that you would have to be acquainted with the semaphore system before the board would mean anything; that he heard the brakes applied and the distress signal given.
Mrs. Alton Jones, for the plaintiff, testified that she was near the Elm Street crossing on the day of the accident; that she saw the train, and it was traveling 25 or 30 miles an hour; that when
T. J. Berry, for the plaintiff, testified that he could not say positively that he saw the train hit Collier’s car, but he saw that it was going to hit; that he thinks that he looked off for just a minute, and looked back, and the automobile was on the cowcatcher or being knocked off; that he was standing in the door of his home when it happened; that he would say that the train was going at 45 to 50 miles per hour; that the rear of the train cleared the crossing by two or three car-lengths; and that Collier was not driving fast.
The plaintiff introduced the ordinance of the City of Barnes-ville, limiting the speed of trains crossing Elm Street to a speed of ten miles per hour. On motion a nonsuit was granted by the court and exception was taken to that ruling.
1. Where damages are proved to have resulted by the operation of the cars of a railroad company, a presumption of negligence arises against the railroad company as to each of the negligent acts charged in the petition, and the plaintiff is entitled to recover the damages proved on such a prima facie case, unless the defendant shall carry the burden of showing that the damage was done by the consent of the injured person, or was caused by his negligence, or that the defendant was not actually guilty of the negligence charged, or, if so, the injured person could have avoided its consequences by the exercise of ordinary care after it had or should have become apparent. Even if the negligence of the injured person contributed in some degree of negligence less than that of the railroad, a recovery is still authorized in an amount diminished in proportion to such contributory negligence. Central of Georgia Railway Co. v. Barnett, 35 Ga. App. 528, 531 (134 S. E. 126);
Where the evidence does not disclose, as in this case, whether or not the injured 'person failed to look or listen, in the absence of evidence to the contrary it is presumed that he complied with any duty that may have devolved upon him in that regard. Georgia Railroad &c. Co. v. Stanley, supra; Slaton v. Southern Railway Co., 45 Ga. App. 781 (165 S. E. 883). He was entitled to assume "that the whole world would be diligent in respect to him and his safety.” Central Railroad &c. Co. v. Smith, 78 Ga. 694 (3 S. E. 397).
The case of Peeples v. L. & N. Railroad Co., 37 Ga. App. 87 (139
Judgment reversed.