37 S.E.2d 831 | Ga. Ct. App. | 1946
1. The widow of one who goes upon a railroad track, fully aware of an approaching train, after having heard the whistle and having seen the headlight of the train, and who miscalculates its speed and distance from the crossing, because of the darkness and mist of a rainy night, cannot recover for his death resulting from being struck by the train, although the company's servants may have been negligent, if such negligence was not wilful or wanton.
2. In a suit by a widow for the death of her husband in a collision between his car and a train on a railroad crossing, a count charging negligence on the part of the railroad company and alleging that the deceased did not hear the whistle of the locomotive, and that after bringing his car to a halt about 20 feet from the railroad track, he looked in the direction from which the train was coming but did not see its headlight, and in undertaking to cross the track was struck and killed, stated a cause of action. Whether or not the deceased was in the exercise of ordinary care and diligence for his own safety was a question for the jury.
(a) For the purpose of pleading, the allegations of one count in a suit are *719 neither helped nor harmed by another count, and separate counts are to be treated as if they set out separate causes of action.
(b) "In this State it is not per se negligent for one not aware of the approach of the train to attempt to cross the track without stopping, looking, or listening." Bryson v. Southern Ry. Co.,
Count 1 alleged: that the deceased heard the whistle sounded by the engineer, signifying the approach of the train to the crossing, and that he could and did see the headlight of the approaching locomotive, but, because of the rain and atmospheric conditions existing at the time, he could not correctly estimate either the speed of the train or its distance from the crossing; and that after bringing his car to a halt, and relying upon the defendant to observe the rate of speed prescribed, and not exceed 15 miles per hour through said city, he undertook to cross the track and his car was struck and he was killed. Count 2 alleged: that, because *720 of the vibration of the car in operation and the running of the motor, the deceased did not hear the whistle of the approaching train, and could not have heard it in the exercise of ordinary care; that, after bringing his car to a halt about 20 feet from the track, he looked westerly for approaching trains and did not see the train or its headlight, his vision being partially obscured by a water tank of the defendant, and further obstructed and obscured by the rainy and misty atmosphere, and the cloudiness of the windows of his car; and that he could not have seen the same in the exercise of ordinary care.
1. We think that the general demurrer was properly sustained as to count 1, under the legal principles stated so well by Judge Jenkins in Laseter v. Clark,
Another principle of law was stated in Thomas v. Central ofGa. Ry. Co.,
In count 1 it appears that the plaintiff's husband heard the whistle of the train, and that he looked and saw the headlight of the locomotive as it approached the crossing, and that he brought his car to a halt; and it seems to be a fair conclusion that he deliberately considered the question whether or not he would be able to cross ahead of the approaching train. His calculations were incorrect and his conclusions were wrong. He made a fatal decision and lost his life. Although the railroad company may have been negligent in all of the ways alleged in this count, such negligence was not wanton and wilful, and the plaintiff cannot recover for anything less than wilful and wanton negligence where it appears that the deceased was not exercising ordinary care for his own safety, and that he could have avoided the consequences to himself of the defendant's negligence by the exercise of such care. Lowe v. Payne, supra. In the recent case of Lord v. Southern Ry. Co.,
2. A different situation is presented by the allegations of count 2. It appears therein that the plaintiff's husband did not hear the whistle of the approaching train, and that, although he looked in the direction from which the train was coming, after bringing his car to a halt about 20 feet from the track, he did not see the train or its headlight; and it was alleged that he could not have heard the whistle or have seen the train in the exercise of ordinary care. As a general rule, separate counts in a suit are to be treated as if they set out separate causes of action (Train v. Emerson.
"In an action for injury resulting from negligence, the plaintiff is not obliged to allege facts showing that he exercised due care for his own safety, or that the injury was not the result of his own negligence." "In an action against a railroad company for injuries received by a person lawfully upon a railroad crossing, the question of what such person must or must not do in order to free himself of guilt of lack of ordinary care constituting the proximate cause of his injury is one for the jury." "The attempt of the plaintiff, who was not aware of the approach of the train, to cross the railroad tracks at this crossing cannot, as a matter of law, be said to constitute such negligence on his part as would bar a recovery." These quoted rulings are from the decision in Luke v. Powell,
It appears in count 2 that, although the deceased brought his car to a halt about 20 feet from the track, and looked in the direction from which the train was approaching the crossing, he did not see the train or its headlight, and that he had not heard the whistle of the train. It was under these circumstances that the deceased concluded that he could safely go upon and over the crossing. It appears, therefore, that the deceased made a reasonable effort to ascertain whether or not he could safely cross the railroad track, and we cannot say as a matter of law that he was not in the exercise of due care in undertaking to cross the track under the circumstances alleged. There is a long line of decisions from the courts of this State, contrary to the rule in some jurisdictions, to the effect that it can not be said, as a matter of law, that the failure of a person, who is unaware of the approach of a train, to stop, look, or listen, renders such person guilty of a lack of ordinary care such as would prevent a recovery, except for wilful and wanton misconduct on the part of the defendant company. See Southern Ry. Co. v.Slaton, supra, with numerous citations. A large number of Georgia cases are cited in the dissenting opinion of Judge Stephens in Coleman v. Western and Atlantic Railroad,
Counsel for the railroad company point out in their briefs that the inability of the deceased to hear the whistle of the locomotive, and to see the headlight of the approaching train, was caused by weather conditions over which the railroad had no control; and their contention seems to be that the deceased was negligent as a matter of law in undertaking to go over the crossing without being able to see or hear the train. They do not suggest how the deceased *724 was to be made aware of the approach of the train that he could not see or hear. Their argument would impose upon the deceased the duty of greater care in operating his taxicab because of the rain and mist, and for the same reason those in charge of the train should have been more careful in operating it. One of the acts of negligence alleged against the railroad was the operation of the train at a speed which was negligent under the physical surroundings and prevailing weather conditions at the time and place of the injury. Finally, it may be said that ordinarily and generally, under well-settled rules of practice in this State, all questions of negligence or non-negligence, on the part of the plaintiff or the defendant, as well as questions of contributory negligence and proximate cause, are properly settled only by the jury, and the courts cannot determine them as a matter of law. It seems to us, therefore, that under count 2 of the petition the plaintiff stated a cause of action which, if supported by evidence, should be submitted to a jury, and that the trial court erred in sustaining the general demurrer as to that count.
Judgment affirmed in part, and reversed in part. Sutton, P.J., and Felton, J., concur.