*1 262 COMPANY,
A99A0174. EVANS TIMBER INC. v. CENTRAL OF RAILROAD GEORGIA COMPANY.
(519 706) SE2d Presiding Judge. Blackburn, (Evans Timber) Company,
Evans Timber Inc. appeals the trial court’s of directed grant verdict to Central of Railroad Georgia Com- (Central) on its pany cross-claim. The trial court found that the Geor- (GCPT), Code of gia Transportation Public enacted in pre- empted railroad’s common-law duty regard installation of protective grade devices at on public roads. Evans Timber also contends the trial court erred in excluding evi- dence of other accidents crossing. at the For the reasons set forth below, we affirm.
The relevant facts are not in Plaintiff dispute. Wilbert Brezial filed suit against both Evans Timber and Central for injuries he suf- fered when the train he was struck a operating truck owned by Evans Timber. The collision occurred at a crossing pub- on lic road. Evans Timber filed a cross-claim against Central alleging that Central negligent failing devices, install warning gates, bells, lights or at the grade to warn motorists of approaching trains.
1. At case, the close of trial of the the trial court granted Cen- tral’s motion for directed verdict on Evans Timber’s cross-claim find- ing GCPT, that the OCGA 32-1-1 et seq., displaced common-law duty of a railroad to install warning devices at a public crossing. Central argued, and the trial court agreed, delegated for responsibility crossings to the governmental entity responsible the road.
A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence intro- duced, with all reasonable therefrom, deductions shall (a). demand a particular verdict. OCGA deter- mining whether any conflict in the exists, evidence the court must construe the evidence most favorably the party opposing the motion for directed verdict. The standard used to review the grant denial of a directed verdict is the any evidence test.
(Punctuation omitted.) (1) McCannon McCannon, 601 App. 684) (1998). SE2d
Prior to the enactment of the Georgia recognized that a railroad could be negligent for the failure to install devices at grade crossings on Schettino, roads. See Isom v. 129 App. 73 SE2d Even after the enactment of the
263
GCPT,
action
recognized
against
this court
a common-law cause of
adequate warning signals.
for the failure to install
See
774)
Co.,
R. Co. v. Ga.
Ga. App.
Southern
623
Kraft
R.
Wall v. Southern
(1988);
Ga.
*2
(4) (410
Markert,
Ga. R. Co. v.
Central
(1990);
of
437) (1991). However,
Court’s decision Kitchen
the
Supreme
712) (1995)
v. CSX
Transp.,
In our supra, Court held Supreme pursuant to (b) CSX statutory had no or common-law duty § to warning install devices on a road on public overpass which an removed. In reaching holding, emphasized its the Court the and intent of the purpose GCPT. 1973, [GCPT], 1973, OCGA 32-1-1 et L. seq., Ga. p. § 1, revise, enacted was to classify, consolidate and
repeal relating public other laws to all bridges, roads and relating to establish new laws L. thereto. Ga. p. 947. legislative The intent purpose [are] 32-1-2, further set out OCGA provide follows: to code of for the public statutes roads and transporta- other state, tion counties, facilities of and municipalities of Georgia. legislative intent is to provide an effective legal organization, basis for administration, operation of an efficient, system modem of roads and public other modes of transportation.
(Punctuation omitted.)
(1).
Kitchen,
tain a 208, fa. 6.
Id. at broad, encom- is of the GCPT scope recognizes, As Kitchen “any transportation also system, but highway only not passing OCGA § limited to railroads.” including but . . . facility road” is corre- (18). “public The definition Kitchen, supra. Accord under- ferries, overpasses, broad, including, part, spondingly markings, or tunnels, signals, signs, crossings, passes, control devices. traffic other avenue, toll road, street, highway, means a road”
“Public detour, way open or other drive, road, tollway, the passage and for enjoyment for its intended or used includ- Georgia, county municipality of vehicles structures, rights, following public not limited to ing but incidental facilities, and sidewalks, appurtenances rights of such *3 maintenance, enjoyment and construction, (C) (B) (A) shoulders, sides; Bridges; Surface, and way: (G) (E) (F) (D) Viaducts; Ferries; Overpasses; Causeways; (J) (I) (H) Tunnels; crossings; Railroad Underpasses; (K) devices; control or other traffic markings, signals, Signs, or and used for personnel public equipment for Buildings of administration, construction, or maintenance engaged (L) thereto; Wayside pertaining or research ways such (O) (N) (M) ditches; facilities; Drainage Parking parks; (P) areas; (Q) Truck-weighing sta- culverts; Rest and Canals (R) and ease- Scenic easements and points; tions or check air, view, and access. light, ments of (24). 32-1-3 OCGA § com- delegates the recognized that GCPT Court in Kitchen to exclusively roads public and control of management
prehensive OCGA 32-6-1 for the road. See § entity responsible governmental the cross- and control of management delegates et seq. entity signals control devices ings, traffic Thus, road is public road. where of the they are because has the county, exclusively, county’s responsibility, construct, maintain control, manage, improve, designate, “plan, (1). See Purvis system.” road county § adequate Contractor, 205 Barber Virgil for all responsibility “control of and addition, county has the county road related to maintenance, or other work construction, (1). Id. at system.”
Likewise, delegates for the installation responsibility governmental entity. devices on a road to the protective Whenever, in the judgment department respect a county respect county the state to its highway system, system, municipality road or a its municipal system, reasonably such is protection necessary street safety traveling public, department or the county municipality or the may protection order crossing by the installation of devices. protective 32-6-200. OCGA § means gates, flashing light signals,
“Protective devices” thereof, devices or together similar combinations with neces- to be installed sary appurtenances, operation grade crossing comply and which standards department being determined at that adequate for the protection time traffic. (23).
OCGA § Thus, the governmental entity for the road responsible (a). orders the installation devices. OCGA 32-6-200 § installation, Prior the DOT must approve plans and specifica- any protective Id.; tions for protec- devices. OCGA 32-1-3. After the has tive device been ordered approved governmental enti- ties, the railroad has a to install the device. OCGA 32-6-200 (a). Contrary assertion, to the dissent’s the statute expressly prohib- its a railroad from unilateral taking action and voluntarily installing no work “However, leading devices: to the installation of protective devices at a grade crossing county or municipal public until shall unless system commence the plan and specifica- tions for approved by department.” are (Emphasis Id. supplied.) *4 delegation
This of responsibility was corroborated at trial. The testimony at trial showed that a could railroad not unilaterally protective install a on a public Instead, road. the appropriate governmental entities approve first to order and the device. Here, the railroad been had not asked to a protective install device. question, duty
Without the common-law of the railroad, except to initiating authorizing the installation of protec- tive at a crossing, devices railroad remains effect. The dissent’s that premise the GCPT reaffirmed the common-law of a rail- road maintain grade crossings safe the on ignores limitations railroad’s duties under plain language of statute. The dissent 32-6-190, relies on OCGA which a on places a railroad to § protective grade crossings devices installation. maintain after (b) (3). The defines §§ 32-6-190; “mainte- 32-6-200 OCGA including repairs preservation public road, of a nance” as “the resurfacing amounting defined this Code construction as (15). defined, in relevant “Construction” is section.” restriping, modifying safety pur- paving, striping, part, as: “the major widening, poses, grading, improvement relocation, reconstruction, or other existing public portion of a road of substantial foregoing.” together incident to of the OCGA with all activities (6). include statute, maintenance does not instal- Under crossing. a lation of devices on against precludes cause of action a The GCPT a common-law adequate protective the failure to install devices at a railroad for grade crossing has not on a road where the railroad entity. by requested appropriate CSX to do so See (1998) (hold- Specialized FSupp.2d Transp. Carriers, 9 v. Trism supersedes ing of action a common-law cause for the that adequate warning signals at a failure to install crossing). devices expressly We overrule Southern R. Co. v. Ga. Kraft supra, of which which did not consider the effect the GCPT and relied 715) (1970), upon Wright Dilbeck, 122 v. prior of Central case decided the enactment the GCPT. Ga. R. of supra, by upon dissent, Markert, Co. cited relied Southern R. distinguishable However, Co. v. Ga. Co. Central Ga. R. Co. is Kraft of grade crossing present case from the as it addressed scope outside road, a situation GCPT. by supra, , dissent, v. Southern R. cited is also
Wall Co. distin- guishable. signaling already case, automatic devices were question precautions, installed, and the whether additional particular flagman, as a were needed under the facts of that case. court based a common-law railroad not on the failure rather, but, on conduct install devices other the rail- road. maintaining sidetracks cars on so as to obstruct the persons entering may considered
view be jury separate negligence contributing the injury although as act of to the negligence might alleged
other acts of be speed signal pro- regard train, failure to and to flagmen, presence Moreover, etc. vide . . . the mere safety precautions signalling such as automatic negligence renders the free from as a neither ter of mat- adopting law, nor relieves it from such other measures prudence and common dictate.
267 omitted.) (Citations punctuation Id. at 484. and Similarly, holding today lia- a railroad is not free from under our simply provided bility legislature that a of law. The has as a matter protective for the failure to install a railroad cannot be liable crossing requested public grade railroad has not been where the may negligent conduct, for other A railroad still be liable to do so. obstructing working failure to maintain a arm or such as the analysis by crossing. precisely undertaken our at a This is vision (2), supra Supreme Kitchen, at 209 when it considered Court warning by CSX, besides the failure to install whether other conduct signals, duty. a common-law created Transp. upon Easterwood, U. S. Timber relies CSX v. 507 Evans (113 (1993), support contention 1732, 123 LE2d of its
658 SC preempted by However, that its common-law claim is not that Highway Crossing GCPT. misplaced. held that the Railroad- reliance is Easterwood chapter Highways of the on Federal Aid
section preempt explicitly implicitly that, state law and conse- did not quently, preempt claim, did a common-law to the law federal Georgia on extent one existed under law. The Court then relied supra, Southern R. Co. v. Ga. law claim. as basis for the common- Kraft regulations Easterwood, Unlike the federal at issue in the com- prehensive pervasive legislation of the GCPT demonstrates the Assembly’s preempt General intent to the common-law of the public grade crossings. railroad to install interpreting “When required a statute we are to look for the intent of the (Punctua- legislature and construe statutes to effectuate that intent.” omitted.) (3) Systems App. Lance, tion G.I.R. v. 219 Ga. 832 597) (1995). present legislative change case, SE2d In the intent to existing expressly repealed common law is manifest. The GCPT replaced previous including statutes, and amici those cited Evans and pp. 1174-1190, Moreover,
curiae. Ga. L. 2. the significantly previous by including differs from those statutes rail- scope grade crossings signals GCPT, roads within the and. by delegating responsibility road, within the definition of for the installation of devices. “The construction of lan- guage light and words used in one statute must be (Punctua- legislative intent as found in the statute aas whole.” omitted.) Spears, App. 502, tion Bennett Elec. Co. v. 188 Ga. legislature clearly delegated responsibility for the including warning signals, protec- road, devices, traffic control devices, tive entities and removed parties. correctly responsibility granted from The trial court Central’s motion for directed verdict on Evans Timber’s cross-claim. contends the error, Evans Timber enumeration of
2. In its second at the cross- of other accidents excluding evidence court erred trial this error with cita- support has failed to Evans Timber ing. Because at trial proffered the evidence was showing tion to the record Diffley deemed abandoned. this error is the error preserved, 123) (1997) (the Lake, at East Marshall’s *6 of a party). record on behalf will not cull the court J, J., J., Johnson, McMurray, P. P. Pope, C. Judgment affirmed. JJ., R. Andrews, Smith, Judge Senior Harold Appellate Ruffin, Barnes, JJ., and dissent in part concur in Eldridge concur. Banke part. concurring dissenting part. Judge,
Eldridge,
2,
Division
I must
majority
respect-
I
as to
but
concur with
change
regard-
1 from this radical
the law
dissent
to Division
fully
to install
devices at
duty
warning
law
of railroads
ing the common
did not
or abolish
crossings.
preempt
road
GCPT
public
a protective
law
for the failure to install
liability
railroads’ common
where the railroad has not
grade crossing
been
public
entity.
contrary,
to do
To the
requested
by
so
law
of railroads to maintain safe
duty
reaffirmed the common
duty:
32-6-190 restates such
crossings; OCGA §
public
whose track or tracks cross a
road at
[a]ny railroad
such
duty
grade crossing
shall have a
to maintain
and convenient
permit
passage
such condition as to
the safe
Such
of maintenance shall include that
public
duty
traffic.
the track or tracks
lying
between
portion
each
beyond
and two feet
the ends of the crossties on
side of
crossings.
Transp.,
See also Easterwood v. CSX
933 F2d
(Emphasis
supplied.)
(11th
1991), aff’d,
Cir.
Assuming arguendo
28) (1933)],
a common
Cook,
imposes
Id. at 209-210. DOT, only gives power authority or a
county, municipality to mandate the installation and mainte- nance by the railroad of grade crossings over railroads; objection of nowhere does the statute expressly impliedly prohibit the railroad from voluntarily taking such action as common law the exercise of care ordinary to make the cross- ing safe. Since the purpose OCGA 32-6-200 is to empower gov- ernmental entities to force railroads install and maintain *7 devices at grade crossings, unsafe then the Assembly General did not intend to prohibit the railroad from voluntarily undertaking safety measure. The General did not Assembly intend to lessen safety devices at dangerous crossings but to increase such measures beyond what railroads already had undertaken. The General Assem- was bly aware that railroads were reluctant to incur the cost of such voluntarily measures or to recognize for liability purposes that crossing was extremely dangerous. The Assembly General intended to provide governmental power entities the to compel railroads to undertake such action to correct the dangers to cure the existing evil. 1-3-1; 859) McGuire, OCGA (1972). McGuire v. 782, 228 Ga. 785 SE2d (a) language does prohibit the rail- road from undertaking on its own judgment to install a protective device without prior judgment by DOT, county, or municipality that it necessary; is the Act merely requires give DOT final approval of any plan specification and for a protective device before the installation. DOT’s exercise of power veto over action by the rail- road, county, or municipality is different from a prohibition of the railroad from seeking DOT’s permission install a protective device.
“The common-law rule is still State, of force and effect in this except where it has changed by express statutory enactment or by necessary implication. Co., [Cits.]” Robeson v. Intl. Indem. 248 Ga. (1) (282 306, 307 SE2d Statutes derogation common law must be strictly construed and never extended beyond plain
270 Entrekin, terms. Duncan v. 311, 211 312 SE2d Ga.
explicit County Seagraves, 196, Fayette (1955); (264 see also 197-198 13) (1980). Thus, of the common law should preemption SE2d such uncertain read into the statute. implications not occur from silent as to the of common law of GCPT is abolition caption as a of the Act. L. grade crossings purpose duties of railroads Ga. 1973, caption purpose 947-958. The does state Act pp. for maintenance of . . . “providing grade crossings providing as county municipality to order the authority Department, providing installation of for the division of the Act, and installation.” Id. at 955. Prior to the acquisition costs of compel entities were unable to railroads to erect such safety devices. Markert, in Central R. Co. v. Court, App. This Ga. of Ga. 437) (1991),
853-854 held that a common law duty existed at railroad private grade crossings: persons rightfully using private crossing,
[w]ith company railroad is similar to its as to them, users of public crossings, it must exercise care, or ordinary reasonable commensurate with the danger situation. particular Accordingly, [railroads] would have no less of a common law duty regard to a private crossing they regard than would have with to a public cross- ing.
(Citation omitted.) Id. at If punctuation 853-854. the General Assembly preempt intended to the field and to avoid an equal protec- issue, tion then it would have uniformly. done so the dicta of such opinion, such common law implied exist both grade crossings. Id. at 854. (1)
In Wall v. Southern R. 266) (1990), this Court having held that functioning safety a railroad did not absolve railroad of the common care, i.e., law duty ordinary to exercise have a flagman present. *8 Thus, GCPT; otherwise, the common law survived the how could the common law arise where the GCPT safety had been installed and was functioning? Southern R. Co. v. Kraft,
Finally, 774) (1988), full rejected was a court which opinion argu- ment that DOT must decide what warnings safety devices were to be used at a and held that railroads common law grade crossings. as to would find that majority Assembly through General selectively abolished common law duties of railroads at without installing governmen- for equal protection for purposes, creating
tal direction but not other issue. in this Judge joins opinion.
I am authorized to state that Barnes Barnes, dissenting part. Judge, concurring part I I agreement Judge Eldridge’s opinion, While am in full I am the fact that since separately point write out that troubled times this 1972 statute was this issue has arisen numerous passed, in trial and as elaborated on appellate courts has been addressed above, fully reaching majority more without the result reaches. Decided June July 22, 1999
Reconsideration denied Jones, Miller, Dodson, Cork & Joyce, Carr G. Thomas W. for appellant.
Hall, Bloch, Stewart, Garland & Meyer, appellee. John S. Strain, Jr., & Cathey Dennis T. E. Cathey, Staples, James Black- wood, Steel, Steel, Lamar, Matthews & Briggs, John D. John B. Cofrin, Lamar, Archer & Robert C. David W. Davenport, Casey, Gil- Williams, Williams, Tornillo, son & Matthew D. Glenn C. James E Grubiak, amici curiae.
A99A0245. J. M. HUBER CORPORATION v. GEORGIA MARBLE COMPANY. Judge.
Ruffin, This is a dispute over who has the marble and mineral rights certain property Pickens County. granted The trial court motion to dismiss of defendant Georgia Marble Company (Georgia Marble) and denied the motion for summary judgment plaintiff J. (Huber). M. Huber Corporation Huber both appeals rulings. Georgia Marble has filed a motion to dismiss the appeal moot. For reasons follow, which we affirm in part reverse part ruling court, trial and we deny Georgia Marble’s motion to dismiss appeal.
The relevant undisputed Benjamin facts are as follows. M. Cow- art died 1911 and bequeathed to his four children all of his real in fee property simple, Land Lot 124 and of Land including Lot 125 in Pickens County, which are the of this With subject litigation.