5 S.E.2d 603 | Ga. Ct. App. | 1939
Lead Opinion
The court did not err in granting a nonsuit.
Judgment affirmed on the main bill of exceptions. Cross-billof exceptions dismissed. Sutton, J., concurs.
Dissenting Opinion
The husband and minor children of Mrs. Mary F. Lassiter brought suit for damages against A. W. P. Railroad Company, for the death of their wife and mother, on account of the alleged negligence of the servants of the defendant in operating a train of the defendant in approaching a private railroad crossing. At the conclusion of the evidence for the plaintiffs the judge granted a nonsuit, and to this judgment the plaintiffs excepted. It is contended in support of the grant of *25 nonsuit that Mrs. Lassiter could have seen the train approaching the crossing, and that she was killed by the train as a result of her own failure to exercise ordinary care in going upon the crossing. The plaintiffs contend that, as the train approached along the defendant's tracks from the north, Mrs. Lassiter's vision was obstructed because of certain shrubbery and grass growing within a few feet of the track on which the train was approaching; that the pathway leading from a street-car stop, where Mrs. Lassiter got off a street-car, to the tracks of the defendant went up a sharp incline of about five feet, and was rough, being of stones and bricks; that the heavy traffic of automobiles and street-cars along an adjacent street prevented her from hearing the natural noise made by the approaching train; that the train approached the crossing at a speed from twenty to twenty-five miles an hour, without slackening its speed; and that the engineer did not blow any whistle or ring any bell or otherwise look out for the presence of persons upon the crossing, although it was a crossing in constant use for more than ten years, of which the defendant had knowledge and had not attempted to prevent persons from using, and it was therefore bound to anticipate the presence of persons thereon.
On the question as to shrubbery and grass obstructing the view of Mrs. Lassiter, Lex Jolly testified, in part, as follows: "Up towards Atlanta, I guess you call that up from the station, there was some shrubbery and bushes, things like that grown up. They were up higher than the opening of the shed. Then I know there was a big bunch of, I call it, Johnson grass; grows up big, you know, about some six or eight feet high, up by the railroad. It was higher than my head at that time, something near six feet. That was along in kind of a ditch, whatever you call it, along the right of way; and then as you got off the street-car you walked out from under that shed a few steps and start up an incline up to the railroad-tracks. . . I walked under the shed up on to the railroad-tracks, and as I went up on the railroad-tracks I could not see any distance hardly until I got right on the track, until I got right up to the track going out from under the shed. I could not see up the track at that time. . . I went out there to see where this accident occurred. The Johnson grass, at that time, was about six feet high. I looked the situation over, and the grass was there. I didn't measure it, but I would say it was something like the *26 height of my head, which is nearly six. The ground about where the person would be walking there would be about the same level to the Johnson grass, and would probably be looking up at an angle that way; that is, it would be possible to look over that grass without seeing the train." Mrs. May L. Horton testified: "This was all grown up in weeds here, and when you got over from this little place over here, as I told you before, stepped off these crossties in a little ditch that comes down to the shed. This was all grown up in weeds and grass, at that time, on the side this lady was going." Mrs. Stella Margaret Cochran testified: "All of the shrubbery there on the left you know, and there is no way you could see the train until it just come right up on you." Mrs. B. S. Bray testified: "The right of way generally grows up between the railroad-tracks and the street-car tracks in grass to a certain extent." There was evidence that this shrubbery stopped near the end of the car shed, and that one could see a train approaching several hundred feet up the track. There was evidence that Mrs. Lassiter was attempting to cross the tracks of the defendant at a crossing which had been in use by the public for more than ten years. It is inferable that the railroad company knew this.
It is presumed, as alleged, that the defendant was negligent in not anticipating the presence of persons on the track at this crossing. It is inferable that Mrs. Lassiter was not a mere trespasser to whom the defendant owed no duty except to refrain from wilfully and wantonly injuring her until her presence on the crossing became known. "Where persons habitually, with the knowledge and without the disapproval of the railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of the custom, are bound, on a given occasion, to anticipate that persons may be upon the tracks at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence." W. A. R.Co. v. Michael,
The evidence authorized a finding that the train approached the crossing at a speed of from twenty to twenty-five miles per hour, that this was a populous locality just outside the city limits of East Point, that the whistle was not blown until the train was within about ten feet of Mrs. Lassiter, that the bell was not rung, and that there was no slackening of the speed of the train. It is presumed, as alleged, that the engineer was not keeping a lookout ahead. The evidence authorized a finding that the railroad company was guilty of negligence in the operation of its train at the time and place, and that its negligence was the proximate cause of the death of Mrs. Lassiter, unless it appeared conclusively and as a matter of law that she negligently went upon the track and that *28
this negligence was the proximate cause of her death. Was Mrs. Lassiter guilty of such negligence as would bar a recovery? There was evidence from which the jury could infer that her view of the approaching train was obscured, that she was not aware of the approach of the train, and that she undertook to cross the railroad-track at a crossing at which the servants of the railroad company in the operation of the train were bound to anticipate the presence of persons. In Vaughn v. L. N. R.Co.,