8 S.E.2d 114 | Ga. Ct. App. | 1940
Lead Opinion
1. While it is true that there is no longer a statute expressly requiring an engineer as a matter of law, "to slow down his train and to have it under control at public crossings," yet, in connection with the other allegations of the petition, it may under some circumstances of course be alleged that it was negligence (not negligence per se) to fail to slow down its locomotive so as to have the train under control at a public crossing.
2. The court did not err in overruling the demurrer on the ground that the petition contained the allegation that "its engineer, agents, and servants failed to slow down its locomotive so as to have the same under control at said crossing," and that "the speed of said train at such time and place is not alleged." Under the particular facts alleged, it was proper for the jury to consider the fact or circumstance that the engineer "failed to slow down its locomotive so as to have the same under control at said crossing."
3. The evidence authorized the verdict, and the special grounds of the motion for new trial show no reversible error for the reasons therein urged.
While that part of section 2675 of the Code of 1910 which recites that whenever the engineer shall arrive at the blow-post he *140
shall be required "to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road," has been repealed, yet the Code of 1933, § 94-506, replaces this section; and although it is less stringent, still it requires the engineer to keep a constant and vigilant lookout along the track ahead of said engine, and to otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which may be on said crossing, or upon the line of said railway at any point within fifty feet of such crossing. While it is thus true that there is no longer a statute expressly requiring the engineer, as a matter of law, "to slow down his train and to have it under control at public crossings," yet, in connection with the other allegations of the petition, it may, under some circumstances, of course be alleged that it was negligence (not negligence per se) to fail to slow the locomotive and train so as to have the train under control at a public crossing. AtlanticCoast Line Railroad Co. v. Bradshaw,
2. When the charge of the court is considered as a whole, the grounds complaining of certain isolated excerpts show no reversible error for the reasons therein urged.
3. The evidence authorized the verdict, and the judge did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and Guerry, J., concur.
Addendum
The petition alleges: "5th. The said crossing . . is a public crossing. All the live stock above described were on said track of said railroad company within fifty feet of said crossing, known as Spangler's Crossing, in full view in the daytime, and in such position on said track as to be visible to the said engineer, agents, and servants of defendant railroad corporation. 6th. Your petitioner alleges that by the exercise of ordinary care and diligence, by constant lookout ahead of the engine and locomotive, the defendant could have avoided the killing of said cow and hog and inflicting said injuries to said heifer. The said defendant did not keep a constant lookout ahead of the said engine and locomotive. 7th. Your petitioner avers defendant by failing to slow down its said engine and locomotive and have it under control could have avoided the said killing of said cow and said hog and inflicting said injuries to said heifer, and failed to use ordinary care and diligence in the handling of its said engine and locomotive at said crossing." The defendant demurred to paragraph 7, on the *142
ground that the allegations therein did not constitute negligence when construed in the light of the other allegations of the petition, and that the speed of the train at such time and place was not alleged. The plaintiff contended that the allegations therein constituted omissions of duty which amounted to negligence. We can not hold, as a matter of law, that the allegations of paragraph 7 do not constitute negligence under the circumstances. These omissions of duty were subject to explanations by the defendant. Explanations of these matters of defense need not have been alleged. Central of Georgia RailwayCo. v. Bagley,
Judgment adhered to. Broyles, C. J., and Guerry, J., concur.