8 S.E.2d 409 | Ga. Ct. App. | 1940
In this joint action against the railway company and its engineer and fireman, to recover damages for the homicide of the plaintiff's husband, the evidence demanded a finding that the only acts of negligence, if there were any such acts which were the proximate cause of the homicide, were committed by the engineer and fireman. Therefore the verdict exonerating the engineer and fireman, but finding the railway company liable, was unauthorized.
However, the defendant in error contends that the petition alleged as a proximate cause of the homicide, which allegation was supported by the evidence, a distinct and separate ground of negligence by the railway company, with which the engineer and fireman were not connected, to wit, the failure of the company to erect a blow-post 400 yards from the crossing in question, as required by the Code, § 94-506. We can not agree to this contention. In the petition it was alleged that there was a blow-post 400 yards from "said crossing." In an amendment it was alleged merely "that there should be erected a blow-post 400 yards from said crossing," and the original allegation that there was such a blow-post was not stricken by the amendment. Moreover, neither the petition nor the amendment charged that the failure to erect the blow-post was the proximate cause of the homicide. Furthermore, even if the petition had contained such an allegation, the undisputed evidence showed that the failure to erect the blow-post was not the proximate cause of the homicide. It is well-settled law that the erection of a blow-post 400 yards from a railroad crossing, and the giving of crossing signals, are for the protection of persons using the crossing, or who are on the track within fifty feet thereof. The undisputed evidence shows that the deceased, when he was struck by the train, wasnot using the crossing, but was walking on the railroad-track ahead of the train; that he heard the train coming, and turnedand looked back at it, and then "struck a trot," and continuedon the track until he was struck by the train about seventeen feet before reaching the crossing. In Moore v. SeaboardAir-Line Ry. Co.,
Conceding, but not deciding, that the demurrer to the petition was properly overruled, we hold that the verdict, exonerating the engineer and fireman and finding the railway company liable, was unauthorized; and that the refusal to grant a new trial was error.
Judgment reversed. MacIntyre and Guerry, JJ., concur.