29 S.E.2d 521 | Ga. Ct. App. | 1944
1. The motion to transfer this case to the Supreme Court is denied. Gulf Paving Co. v. Atlanta,
2. Where a private way crosses the track of a railroad company, and the crossing is maintained by the company, and such private way for more than twenty years has been in constant and uninterrupted use by the people of the neighborhood, it is a question for the jury to say whether, in the exercise of ordinary care, the servants in charge of a train should anticipate that persons may be on the track at this point and should take such precautions to prevent injury to those persons as would meet the requirement of ordinary care and diligence. But the imposition of such a duty on the part of the defendant railroad company would not relieve the plaintiff, going upon the tracks at the crossing, from exercising ordinary care for his own safety.
3. The judge did not err in overruling the general and special demurrers to the petition as amended.
4. In the absence of any statute, State or Federal, imposing any duty on the railroad in operating trains at a private crossing such as the one in question, it can not be said that the general duty to exercise ordinary care, imposed by the law of the State upon its citizens generally, *755 constitutes a direct, unreasonable burden on interstate commerce, because persons engaged in interstate commerce incidentally come within the purview of such general law.
5. The law of this State which imposes upon its citizens generally the duty to exercise ordinary care, as interpreted by the Supreme Court and the Court of Appeals of Georgia and as it relates to the operation of trains, and particularly in the operation of the train in question, is not a direct and unconstitutional interference with interstate commerce; and the particular facts pleaded in the railroad's answer, which it claimed supported a conclusion that the decisions of the Supreme Court and the Court of Appeals of Georgia imposed a direct and unconstitutional burden on interstate commerce, were properly stricken on demurrer.
6. That part of the decision rendered on rehearing by this division of the Court of Appeals in the case of Atlanta West Point R. Co. v. Hemmings,
7. There was no error requiring the grant of a new trial in the various rulings and instructions excepted to (and stated in the opinion of the court, infra); and the evidence authorized the verdict.
1. The demurrer was both general and special. The grounds of special demurrer, which attacked the petition for indefiniteness and inconsistency, and on the ground that certain allegations were conclusions of the pleader, without evidentiary facts to support such conclusions, were properly overruled, after the petition had been amended.
"The measure of diligence due . . by a railroad company to any person is a relative one, and what is or is not due diligence must be arrived at in every case with reference to the surrounding circumstances and the relations which, for the time being, the company and the person in question occupied toward each other." Crawford v. Southern Ry. Co.,
2. The following parts of paragraph 17 of the answer were stricken on demurrer, for the reason that the contents of these parts of the paragraph fail to set forth a legal defense: "(b) Defendants aver, that in order to avoid the responsibility of injuries to persons on private crossings, under said charged act of negligence, will require the locomotive engineer of a train to reduce the speed of said train, so as to stop the same should any person be upon any crossing. (c) Defendants further aver that they are engaged in the operation of interstate trains, and that the train in the instant case was then engaged in the operation of interstate movement out of, and through, and in the States of Virginia, North and South Carolina, Georgia, and Alabama; that it was a freight train consisting of engine, eight cars, and caboose, and that it was proceeding at the time of said collision on its run from Abbeville, S.C., and had left Abbeville and headed to Howell's Yard, Atlanta, Georgia; that it had crossed the Savannah River, the dividing line between Georgia and South Carolina, a distance of 123 miles; that between the Savannah River and Howell's Yard, Atlanta, Georgia, there are 162 public-highway crossings at grade, and that there are — number of private-vehicle crossings between the Savannah River at the State line, between South Carolina and Georgia, to Howell's Yard, Atlanta, Georgia; that all of defendant's trains, passenger and freight, operate over and across said public and private-vehicle crossings; that the slackening and checking of a freight train in approaching said crossing or crossings will necessitate the loss of five minutes; that to stop said freight train at said crossing or crossings will cause a loss of ten *761
minutes; that its schedule maximum running time is 40 miles per hour, and that the mere slackening or slowing down would increase its running time [of] 30 hours between Abbeville, S.C. and Howell's Yard, Atlanta, Georgia, to 50 hours; and that if there should be persons upon the intervening crossing, and defendant's agents, servants, and employees were required to check and slacken the speed of said trains and stop before reaching said crossing as alleged and charged by plaintiff, it would be impossible to regain its maximum schedule speed. (d) For further plea and answer defendants say: That in order for a train to be prepared to stop at any crossing the speed of such train must be reduced to not more than five or six miles per hour when it is within 50 to 100 feet of said crossing. Defendants show that while to comply with said charged act of negligence and claimed rule of law would not only cause it to lose the time that would be consumed in reducing speed in approaching said crossing and the time that would be consumed in resuming its usual speed for the operation of its trains after passing said crossing, but said crossings are so numerous and so spaced over the line of the Seaboard Air Line Railway, that the defendant's trains could never attain a speed greater than 8 to 10 miles per hour, or its normal average schedule running speed of 35 to 40 miles per hour. (e) . . Defendants further show that the train that is charged to have collided with the truck and caused the death of the deceased, Dewitt Smith, was, at the time of said alleged occurrence, being operated in interstate commerce, and the movement of interstate freight from out of the State of Georgia into the State of Georgia. (f) That said charged acts of negligence in not checking the speed of the train in approaching the crossing and not stopping the train before reaching the crossing, inferentially, as well as directly, charged a failure on the part of the defendant to comply with what was formerly known as the `Blow-Post Law' of the State of Georgia, embodied in §§ 2675, 2676, and 2677, of the Civil Code of Georgia of 1910, which were declared unconstitutional by the Supreme Court of the United States in the case of Seaboard Air Line Railway Co. v.
Blackwell,
The Civil Code of 1910, § 2675, provided: "There must be fixed on the line of said roads, and at the distance of four hundred yards from the center of each of such road crossings, and on each side thereof, a post, and the engineer shall be required, whenever he shall arrive at either of said posts, to blow the whistle of the locomotive until it arrives at the public road, and 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." In Seaboard Air Line Railway v. Blackwell, supra, the facts charged were: "That the deceased was driving a horse along a public road in the county of Elbert and while crossing the railroad track of the railway company at a public crossing outside of the city of Elberton he was struck by the engine of one of the company's passenger trains and received injuries from which he died three days later; that the employees of the company in charge of the train failed to blow the engine whistle at the blow-post 400 yards south of the crossing, failed to keep blowing it until the train arrived at the crossing, and failed to check the speed of the *763 train at such blow-post and keep it checked until the train reached the crossing, and, so failing, the company was guilty of negligence; that the employees of the company failed to keep the train under control and approached the crossing at a high rate of speed, so that they could not stop the same in time to save the life of the deceased, and that such conduct was negligence; and that `such conduct was negligence if they saw said deceased on the crossing, and it was negligence under the blow-post law, and it was negligence regardless of the blow-post law.'" The court held: "That provision of the `Blow-Post' law of Georgia (Civil Code, 1910, §§ 2675-2677), which requires railroad companies to check the speed of trains before public road crossings so that trains may be stopped in time should any person or thing be crossing the track there, is a direct and unconstitutional interference with interstate commerce as applied to the state of facts specifically pleaded by the defendant interstate carrier in this case, whereby it appears that, to comply with the requirement, the interstate train in question would have been obliged to come practically to a stop at each of 124 ordinary grade crossings within a distance of 123 miles in Georgia extending from Atlanta to the South Carolina line, and that more than six hours would thus have been added to the schedule time of four hours and thirty minutes;" and "that the statute is a direct burden on interstate commerce and being such is unlawful." Seaboard Air Line Railway v. Blackwell, was decided on June 4, 1917. The act approved August 19, 1918 (Ga. L. 1918, p. 212), relating to public crossings only repealed that provision of the blowpost law that was declared unconstitutional by the United States Supreme Court. The act of 1918 requires only the blowing of "two long and two short blasts at intervals of five seconds between each blast, said blasts to be loud and distinct;" and is otherwise less stringent in that it requires only that the engineer "keep and maintain a constant and vigilant lookout along the track ahead of said engine, and shall otherwise exercise due care in approaching said [public] crossing, in order to avoid doing injury to any person or property which may be on said crossing," instead of requiring the engineer, when he arrives at the blow-post, to check the speed of the engine so as to stop in time should any person or thing be crossing said track on said railroad.
The petition in the instant case as amended shows clearly that *764
the suit was not brought for damages arising out of the failure of the railway company to comply with the requirements of the act of 1918, supra (Code, § 94-506), and of course no attempt is made to proceed under the former statute which was embodied in the Civil Code of 1910, § 2675, and declared unconstitutional in part by the Supreme Court of the United States in the Blackwell case, and repealed by the act of 1918. Neither is the plaintiff contending that the defendant violated any duty relating to speed imposed by statute, for he alleges that the defendant was negligent in failing to have the engine under control and to check the speed of the train upon approaching the private crossing, under the surrounding facts and circumstances as they existed at the time the deceased was killed at the private crossing, and that said acts constitute simple negligence as a matter of fact. It is the law in torts that if any person, natural or artificial, owes a duty, and breaches that duty, and if the breach of that duty, imposed by statute or otherwise, is the proximate cause of an injury and results in damage, the person who breached such duty is guilty of actionable negligence. Before the act (codified as section 2675 of the Civil Code of 1910, and since repealed) was passed, and since the passage of the act of 1918, which is now in force (Code, § 94-506), the Supreme Court of Georgia held: "The proprietors of railroads, when running their engines over crossings, must use reasonable care and diligence, taking into consideration all the circumstances of the case; and whether there has been negligence or not, depends upon the facts of each particular case, and the question is to be decided by the Jury." Macon Western RailroadCompany v. Davis,
Since the decision of the Supreme Court of the United States in the Blackwell case, it has been held by the Supreme Court of Georgia: "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 *765
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." Western Atlantic R. Co. v.Michael, supra. The Court of Appeals has said that, "Where a private way crosses the track of a railroad company, and the crossing is maintained by the company, and has for a number of years been in constant and uninterrupted use by the people of the community, a jury may be authorized to find that the servants in charge of a train should anticipate that a person may be on the track at such point, and use such precaution to prevent injury to him as would meet the requirements of ordinary care. Louisville Nashville R. Co. v. Arp. [supra]. But the imposition of such a duty on the part of the servants of the railroad company would not relieve a person going upon the tracks at the crossing from the duty of exercising ordinary care for his own safety.Atlantic Coast Line R. Co. v. Fulford,
In the Blackwell case, the effect of the Georgia statute there referred to was to require the train of the railroad company not only to be under control under a given state of facts and circumstances, but to require the train to come practically to a stop at all crossings under any and all circumstances, whereas in the instant case, under the law of torts which is to be applied, unaffected by any statute relating to the duty of the agents of the railroad company to slacken the speed of the train at the private crossing where the injury occurred, it is only required to slacken the speed or stop if the exercise of ordinary care so requires. Under the law of torts which should be applied here (the general duty to exercise ordinary care), the jury is to say whether a failure on the part of the railroad company to blow its whistle, ring its bell, or check the *767 speed of the train approaching the private crossing, under the particular facts and circumstances, was actionable negligence as a matter of fact, there being no statutory duty so to act. In the instant case, no statutory requirement, either State or Federal, to blow the whistle, etc., or check the speed of the train, is involved. And we can not say that the facts and circumstances here alleged, which constitute actionable negligence under the interpretations of both the Supreme Court and the Court of Appeals, are as substantial and hurtful to interstate commerce as the burden imposed by the statute referred to in the Blackwell case. We do not think it can be said "that the general duty to exercise ordinary care, imposed by the law of the State upon its citizens generally, constitutes an unreasonable burden upon interstate commerce because persons engaged in interstate commerce incidentally come within the purview of such general laws." Seaboard Air Line Ry. Co. v. Benton, supra. To say otherwise, and in order to declare that the facts specified in the part of the answer here demurred to, if proved, would be a direct burden on interstate commerce, we would at least be forced to assume that the surrounding facts and circumstances at all the private crossings on the line of track of this railroad between Atlanta, Georgia, and the South Carolina line, or a sufficient number of those specified in the defendant's answer, presented, relative to the duty of slackening the speed of the train, the equivalence of the particular or surrounding facts and circumstances on the occasion when the deceased was killed at the particular private crossing in question. This we can not do, for it would be an unreasonable assumption. We can not say that, under the surrounding facts and circumstances here pleaded, it was beyond the power of the State to require the defendant to comply with the general duty to exercise ordinary care, which the law of the State imposes generally upon its other citizens. Therefore we think that when the defendant undertakes, among other defenses, to set up in his answer facts and circumstances which he claims authorized a conclusion which we think is based upon such an assumption, the court did not err in striking on demurrer such a defense from his answer and in thereafter refusing to allow evidence to support the allegations of the answer so stricken.
The part of the decision, rendered on rehearing, in Atlanta West Point R. Co. v. Hemmings, supra, with the exception of that *768 paragraph dealing with special ground 7 of the motion for new trial, which is out of harmony with what has just been stated, and with former decisions of this court and the Supreme Court, therefore must yield to those cases. Furthermore, the Hemmings case, supra, is not a controlling precedent, for it was not concurred in by all the judges who constituted the division deciding it, and, after further consideration, that part of the decision, above stated, is disapproved and will not be followed.
3. As to ground 4 of the motion for new trial, having sustained the trial court in overruling the demurrers to the petition, we hold that the evidence excepted to in this ground, being relevant to facts alleged, was properly allowed over objections urged. A trial judge can state his reasons for admitting or refusing to admit evidence, if such reasons are pertinent to objections to the evidence and the rulings made thereon, and this statement does not constitute such an expression of an opinion as is violative of section 3-606 of the Code. Jones v. Pope,
4. The rejection of the testimony tendered in support of the defense stricken on the demurrer to the answer, excepted to in ground 5, was not error.
5. The exceptions to the charge are not meritorious.
6. After a careful consideration of the voluminous brief of evidence, we think that the jury were authorized to find the defendant guilty of simple negligence, and that the verdict was authorized.
Judgment affirmed. Gardner, J., concurs. Broyles, C. J.,dissents.