8 S.E.2d 566 | Ga. Ct. App. | 1940
Lead Opinion
Under the law and the evidence the verdict in favor of the plaintiff was not authorized. The court erred in overruling the defendant's motion for new trial.
The following appears from the evidence: Strozier T. Todd was the husband of Mrs. Mittie Todd. About 6 p. m. on Sunday afternoon, May 22, 1938, he was struck and killed by a passenger-train which was operated at the time by the defendant and was traveling "pretty fast." The accident occurred near what had been Allie Station in Meriwether County. There had once been a depot at Allie, but it had long since been abandoned and removed, and there was left to designate the station only a signboard with the word "Allie" written on it. At Allie there is a main line and a side-track which extend in the general direction north and south; but as they pass the station sign these tracks are on a curve. Proceeding south the curve is to the right. The main line is east of the side-track. About one mile north of Allie is a station signal. At a point 418 feet north of Allie Station is a crossing where the Hogansville public road crosses the main line and side-track. South of the Allie Station sign is a railroad telephone booth. The station sign and the booth are east of the main line. South of Allie Station and south of the telephone booth is a switch point where the side-track joins the main line. The Hogansville public road *253 is 507 feet north of the telephone booth, and 943 feet north of the switch point. The station sign is 89 feet north of the telephone booth, and 525 feet north of the switch point. The telephone booth is 436 feet north of the switch point. Mr. Todd left his home in the afternoon, proceeded across the field and pasture, and entered the main-line track about where the switch point south of Allie is located. He was walking north between the rails on the mainline track when he was struck and killed by a passenger-train which was proceeding south on the main-line track. He was knocked off the track, and was lying between the main line and the side-track when picked up. Witnesses testified that people were accustomed to use the pathway and the track between the switch point and Allie Station, for the purpose of going to and from the station. The engineer and fireman and other employees on the train testified, that they had never seen the pathway; that it was not there; that the track between the switch point and the station was not used by pedestrians; that they had never seen any one walking along the track between the switch point and the station until Mr. Todd was seen; and that they did not know of any use by pedestrians of this portion of the track as a pathway
Worcester Todd, a son of the plaintiff, testified as follows: "I was standing on a dam looking at some fish playing in the water. The train came, and I didn't hear anything at all until this sharp blowing. I could see the top of the train where I picked him up at. That was where the sharp blowing took place, as near as I could get at it. . . When I got there it was my father that was killed there. Some railroad man with a cap on, flagman or conductor one, came out from the train and told me to push him off the track, and said, "Then we can back up here; we are already late.' . . We helped to get him off, so the train would have room to back up there where he was at. They backed up, and this trainman got out and said to the engineer, `Did you see this man?' and he said `Yes, I saw him when I came around the curve. I thought he would get off the track, and he didn't get off until I got right on him, and I blew the whistle, slammed on the brakes, and ran right into him.' From the curve where the engineer said he first saw the deceased to the point where the train hit him is from 275 to 300 yards. It was right at 300 yards. We stepped it. The train, after hitting him, drug him 50 or 60 yards. I did *254 not hear the train blow for the station nor for the crossing. The first blowing I heard was the sharp blowing just about where I picked up my father. It did not sound like a crossing blowing nor a station blowing. I made an examination of the track along there. It had something like paper on the rails. I reckon five steps above where it hit him down to where it stopped 250 to 300 yards below there. There was nothing on the rail above there to indicate that the brakes had been applied. There was something there that appeared that the rails had been burned. There was sand or something on the track. It looked like the ties had been burned. That began about five steps above where the train first started to dragging him and went down for about 50 or 60 yards. It went on beyond where I picked up the body, 250 or 300 yards. The substance on the rails began about five feet from where the train hit him, and extended from there to the place where the train stopped. There was not any of that stuff on the rails above where the train hit him. . . I know where the train was when it blew. I could see the top of it and the smoke coming out of it. . . Starting at the curve, I could see where Mr. Todd was hit at. I let somebody walk down there and stand, and I went back to the curve and looked to see how far I could see. . . Mr. Todd walked with his head down all the time, whether on the highway, railroad, or anywhere else. I have seen him walking down the street with his head down." The witness further testified that he was at a dirt dam where there was a spring pond, and that the distance therefrom to the switch point was about 250 yards, and from the switch point to the Hogansville road was about 400 yards, thus making the distance from him to the Hogansville crossing about 650 yards; and that between the dam and the switch point there was a lot of trees, bushes, and things that had grown up around there.
Guy Reeves testified for the plaintiff, in part, as follows: "I was sitting on my porch at the time I saw Mr. Todd was coming. My mother was with me, but she couldn't see. I saw him coming across the pasture. My pasture is right in front of my house. He went out of sight. The next time I saw him, he was on the railroad coming up the track. There was a patch of woods between me and the railroad. I saw Mr. Todd when he went behind these woods, and I saw him just as he came out, and that is when the train hit him, immediately after he stepped from behind those *255 woods. The first blow of the train I heard was when it tooted for Mr. Todd. I don't know just how close the train was when that happened, but the train, I would say, was within ten feet of him. I couldn't say how fast the train was going. I don't know of any special noise it was making. It is downgrade around the curve. The train was going fast. Pretty fast, I would say. It blew when it got right on him. I immediately jumped and started running down across the field. When I got there, the train was stopped. I think Worcester, his son, and myself were the first ones there. After the train stopped, the flagman or the conductor said: `Somebody move the body off, so we can back up.' It was right there in that switch, in where the tracks meet there with the switch track. After that the engineer came out. The engineer and the conductor were talking. The conductor asked him if he was late. The engineer told him he was five minutes late. The conductor asked him if he saw the man. He said: `Yes, I saw him, but I thought he was going to get off.' That was the conversation. The first blowing I heard was just before it struck him. I remember the train blowing for the station. It gave one long blow for the station. After that I don't remember the train blowing for the crossing. I possibly would have heard it had it been blown. I heard it blow for the station and heard it blow toot, toot, toot, when it hit Mr. Todd. . . I heard the train blow the station signal. I don't recall whether it blew the crossing signal. It is possible it would have blown and I not heard it. I am living there and am accustomed to hearing it and pay no attention to it lots of times. I saw the train and I heard it."
Tom Shelton, a witness for the plaintiff, testified: "I heard the train blow. It looked like it was back up in the cut somewhere. The next time I heard the train, it went toot, toot, toot, toot." Mrs. Hattie Reeves testified as follows: "My porch faces the track. From the porch I can see the track in a certain place. I can not see it away down. From where I was sitting this Sunday afternoon I could see the track. I could see the track from my porch to where the depot used to be. When the train began to make that short blow was when I looked around to see what it was. . . When I first heard the train it was making a lot of sharp blasts. That is when I looked around. At that time the last coach was below the telephone booth. It kept blowing and then made one sharp blow." *256
J. R. Hutchinson testified: "I was sitting on a bench at the porch store. I heard the train coming and heard it blow for the crossing. Immediately after that I heard it blow like a cow was on the track, quick blasts of the whistle." Louise McLaughlin testified: "I heard the train coming. I heard it blow for the crossing. It blew some more, some sharp blows like cows were on the track. I was in the house. . . I heard it blow for the crossing and immediately after that several short blasts. . . It never did stop blowing." Roberta Evans testified: "I heard the train coming. It was blowing. I heard it blow for the crossing. It just kept blowing." Susie Parks testified: "I heard the train blow for the crossing that afternoon. I heard it blow short quick blasts immediately afterwards." Emma Anderson testified: "I heard the train blow for the station and the crossing. After it blew for the crossing it commenced giving these short blows. I heard that. . . It started blowing the short blasts. It started blowing just as it started across the Hogansville crossing." Ludie Anderson testified: "I heard the train blowing for the crossing. Immediately after that I heard some short blasts. I don't know how those short blasts blow. I didn't pay that much attention. I know they sounded. . . `Toot, toot, toot, toot;' that's the way it went."
The engineer testified that the bell was ringing as the engine approached the crossing; that it was ringing by automatic bell ringer; that it was ringing when the engine struck the plaintiff's husband. He further testified: "As I approached the crossing I was looking ahead at the crossing. The speed of the train was between forty-five and fifty miles per hour. I saw Mr. Todd on the track. I first saw him after I came out of the cut and passed over the crossing. Just as soon as I saw him I immediately sounded the whistle, applied the brakes in emergency, swiped the brakes in emergency, and applied sand to the rails. I did that as soon as I saw him. I did everything I could do to stop the train before hitting him. The train did stop. When I first saw Mr. Todd, he was on the track between the rails going north and facing the train. When I first saw him, I would say that he was about 700 yards away." The fireman testified that he threw the brakes in emergency and stopped as quickly as possible, and that the bell was ringing by automatic bell ringer. Guy Reeves further testified:
I noticed the condition of the rails, I think, after you mentioned *257 it. I saw the tracks. This bruise on the track was due to the sand on it. It was noticeable. I know that. It began to be noticeable about where he was hit. It continued on down the tracks a good piece. It did not have the appearance of that kind before that up the track."
It is apparently conceded in the briefs of counsel for the defendant in error that the deceased was a trespasser at the time of the homicide, and that the duty of the railroad to protect him did not arise, under the circumstances of the present case, until the engineer saw him on the tracks of the defendant. "Ordinarily the only duty owing by a railway company to a trespasser upon or about its property is not to wantonly or wilfully injure him after his presence has been discovered." Hammontree v.Southern Railway Co.,
The action instituted by the plaintiff is predicated on the theory that the defendant failed to give any warning to the deceased while on its tracks, and that its conduct amounted to wilfulness and wantonness. The testimony of disinterested witnesses, eight or nine in number, living or being in the immediate vicinity of the accident, was that the whistle was blown for the crossing and that immediately thereafter, just before the train struck the deceased, there were several sharp blasts. According to the testimony of the witnesses for the defendant the bell was rung by means of an automatic bell ringer. If the bell was rung as testified to by such witnesses the conduct of the defendant could not be said to have been wilful and wanton. It is contended by the defendant in error, however, that on the question whether or not the bell was rung an issue was made for the determination of the jury, and that this conflict arises by reason of the testimony of the son of the deceased that "the train came and I didn't hear anything at all until this sharp blowing" just before the deceased was struck. In respect of whether positive testimony, such as that introduced by the defendant as to the ringing of the bell, may be overcome by "negative testimony," the test is always to be made with reference to the facts and circumstances surrounding the witness at the time of the accident, even though the witnesses be of equal credibility. Ordinarily, as was held in Johnson v.State,
The testimony of the witnesses for the plaintiff, except Worcester Todd, must be said to have been given with reference to the manner in which the whistle was blown, and not as to whether or not the bell had been rung. However, the examination of the witness Todd did not disclose, with reference to the ringing of the bell, any fact from which it would be a reasonable inference that he was aware of the approach of the train or giving it any attention until it was almost on his father, at which time the witness heard a sharp blast of the whistle. He was then several hundred yards distant, with a thick growth of trees and underbrush between him and the train, and was "standing on a dam, looking at some fish playing in the water." He did not speak with reference to any *260
ringing of the bell, merely testifying that "I didn't hear anything at all until this sharp blowing," and there was no evidence which would authorize an inference that he could have heard the bell if he had been aware of the approach of the train and had been listening instead of devoting his attention to the fish. In the absence of such a showing, the mere statement that, under the circumstances disclosed, he heard nothing, would not be sufficient to raise an issue for the jury on the question of whether or not the bell was rung. The evidence must therefore be taken as showing by unimpeached witnesses that the engineer made an effort to warn the trespasser by the ringing of the bell, and, however insufficient and negligent his conduct might have been, it negatives any wilfulness or wantonness on the part of the engineer or such acts as would illustrate an utter disregard for the welfare of the deceased. "It will not do to say that the jury are the judges of whether such conduct exists. They are not the judges of it, when there is no evidence of it. Issues of fact are to be left to the jury, where the pleadings and evidence justify it; but not where there is no evidence authorizing it. There must be something more than the mere proof of failure to give a statutory signal or make a stop required by a statute in approaching a crossing. There must be affirmative evidence of facts tending to show wilfulness, wantonness, or the existence of particular circumstances from which an inference of a conscious indifference to consequences might legitimately be drawn. And these facts must be shown in addition to the mere omission to give statutory signals or take statutory precautions in approaching crossings. If this be not the law, then practically every case of negligent injury can be made the vehicle of submitting to the jury the question of wilfulness and wantonness, by merely using adjectives in describing the character of the negligence." Southern Railway Co. v. Davis,
Judgment reversed. Sutton, J., concurs. *261
Dissenting Opinion
While, as stated in the Georgia decisions, the company owed no duty to the plaintiff's husband as a trespasser on its track until his presence became known to the servants of the defendant operating the train, and when his presence became known the only duty owed by them to him was not to wantonly and wilfully injure him, yet it has been held that the conduct of the operators of a railroad train, after a trespasser's presence on the tracks is known to them, amounting to negligence, may amount to wilfulness and wantonness. "The only duty which a railroad company owes a trespasser is not to injure him wantonly or wilfully; and ordinarily this rule imposes upon the company simply the duty of taking proper precautions after the presence of a trespasser in a position of peril has been discovered." Ashworth v. Southern Ry. Co.,
As I understand the law, the mere fact that the engineer, after discovering the presence of the trespasser on the track, may have acted in some manner, such as ringing the bell, or blowing the *262
whistle, would not as a matter of law relieve him of the charge of wilful and wanton conduct. I do not concur in the proposition, that, although it may appear conclusively in the case at bar that the bell was rung by the operator of the train when the plaintiff's husband was first observed on the track, the operator of the train was not guilty of wilful and wanton conduct as respects the person on the track. Therefore it is not necessary, to constitute wilful and wanton conduct on the part of the operator of the engine, that both the bell and the whistle were not sounded. When the operators of a railroad-train become aware of the perilous situation of a person on the track, they should give a timely warning by bell, whistle, or otherwise, where it is apparent that the person is oblivious of the danger and is not preparing to leave the track. This might, under the circumstances, include both the ringing of the bell and the sounding of the whistle. 52 C. J. 598; Malko v. Chicago c. R. Co.,
In Humphries v. Southern Ry. Co.,
It is contended by counsel for the defendant that the company owed to the plaintiff's husband the duty only of either ringing the bell or blowing the whistle upon its servants in charge of the operation of the train observing him walking along the track toward the approaching train; that it did not owe the duty of both ringing the bell and blowing the whistle; that the evidence shows conclusively that the bell was ringing from the time the train approached the crossing until it struck the husband of the plaintiff; and that a verdict in favor of the plaintiff, based on the theory that the defendant's agents were guilty of wilfulness and wantonness, was unauthorized and contrary to law. Counsel further contend that this is the rule laid down in Fox v.Pollard, supra. I can not agree to this contention. In the first place, the evidence does not show conclusively that the bell of the engine was ringing continuously until the train struck the plaintiff's husband. It appears from the testimony of the engineer and the fireman that the bell was rung as the train approached the public crossing, and that the bell was rung at the time the train struck plaintiff's husband. It does not affirmatively appear that the bell was ringing from the time the operators of the train saw plaintiff's husband in a position of peril until the train ran over him. There is testimony of the plaintiff's son that the operators did not give any warning or signal of any kind until just at the time the locomotive struck his father. In the second place, under all the circumstances, the ringing of the bell alone, upon the observance by the engineer of a person in a position of peril on the tracks in front of a rapidly approaching locomotive, might not meet the requirements of the duty owed to such person, and even though the bell might have been rung, ordinary and common prudence might require that the whistle be blown in order for the person on the track to have ample and sufficient *264
warning of the approaching train. In other words, under certain facts and circumstances, the jury might find that the duty required of the servants in charge of the train included not only the ringing of the bell but also the sounding of the whistle in time for the person on the track to get out of the way of the train. Again, the decision in Fox v. Pollard, supra, does not hold that the ringing of the bell or the sounding of the whistle, either one, would in all cases be sufficient to meet the requirements of the duty placed on the operators of a train on observing one on the track in front of the train. That case was based mainly on Humphries v. Southern Ry. Co., supra, which was based on the principle laid down in 2 Rorer on Railroads, 1122, that "as a matter of ordinary prudence and care, it is their duty to sound the whistle and ring the bell, as a warning of the approaching danger," which principle was quoted with approval in Central Railroad Bkg. Co. v. Denson,
Whether or not it is established conclusively as a matter of law that the operators of the train exercised due care and diligence in ringing the bell, it does not appear conclusively and without dispute from the evidence that the whistle was sounded when they first saw the plaintiff's husband on the track, or, after it was sounded, that he had time to leave the track. From the statement of the engineer alone made to Worcester Todd, when the dead man was picked up, and which is part of the res gestae and binding on the defendant, that the engineer, when he came around the curve, saw the plaintiff's husband on the tracks, but thought that he would get off the tracks, and, quoting from the statement attributed to the engineer, that "he didn't get off until I got right on him, and I blew the whistle, slammed on the brakes, and ran right into him," it could be inferred that the whistle was not blown in time for the plaintiff's husband to leave the tracks, and was not blown until the train had gotten "right on him." It appears that from the curve where the engineer said he first saw the deceased to the point where the train hit him is from 275 to 300 yards. Also it appears from the testimony of Worcester Todd, who, it is inferable, was within *265 hearing distance of the train at the time, that he did not hear anything until the "sharp blowing," and that the "sharp blowing" took place where he picked up the body of the deceased. A jury was authorized to find that the operators of the train failed to give the plaintiff's husband a timely and sufficient warning, either by the ringing of the bell or the blowing of the whistle, after the engineer had observed his presence on the track. Even if the bell had been rung after the plaintiff's husband had been observed on the track by the operators of the train, it could be inferred from the evidence and from the circumstances in evidence that it was not a sufficient warning, because the plaintiff's husband did not hear or heed it. Even assuming, though it does not appear conclusively from the evidence, that the bell was rung, as contended by the defendant, after the plaintiff's husband had been seen by the engineer on the track, the jury could infer that this was not a sufficient warning under the circumstances, and it could nevertheless still be inferred that a timely and sufficient warning by the blowing of the whistle was not given, and that the failure of the operators of the train to give warning by the blowing of the whistle, under the circumstances, after observing the plaintiff's husband on the track, notwithstanding the ringing of the bell, was a wilful and wanton act.
I am of the opinion that the verdict for the plaintiff was authorized, and that the judge did not err in overruling the motion for new trial.