6 S.E.2d 135 | Ga. Ct. App. | 1939
Lead Opinion
1. "Where a number of persons habitually, with the knowledge and without the disapproval of a 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 track 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." Bullard v. Southern Ry. Co.,
2. It can not be said as a matter of law that the failure of a person approaching and entering upon a railroad crossing, and unaware of the approach of a train, to stop, look, and listen, renders such person guilty of such lack of ordinary care as would prevent recovery except in cases of wilful and wanton conduct on the part of the defendant company.
3. Enough was alleged in the petition to withstand a general demurrer, and the court erred in sustaining the same.
When the case again reached the trial court the petition was amended by striking the allegations as to the crossing being a public crossing, and by alleging that the crossing was a private crossing, known as Hallman's Crossing, and had been in constant and uninterrupted use as such by the people of the neighborhood for forty years, and had been recognized by the defendant as such. The allegations with respect to the duty owing to a person at or on a public crossing, such as the erection of blow posts and the blowing of the whistle as prescribed by law, were stricken, and it was alleged that said train approached said crossing at a speed of sixty miles per hour. The specific acts of negligence as first alleged were: "(1) in not erecting blow posts on each side of said Hallman's Crossing and four hundred yards from the point where the said road crosses the tracks of said defendant; (2) in failing to signal the approach of said train to said crossing by blowing the whistle or ringing the bell; (3) because the engineer in charge of said train failed to keep and maintain a constant and vigilant lookout along the tracks to avoid doing injury to any person on the track; *374 (4) allowing bushes, weeds, and grass as described in the petition, to grow on the embankment as alleged in said petition; (5) driving the train at said time and place at sixty miles per hour; (6) failure of the engineer to reduce the speed of the said train as it approached the said crossing, and to stop the said train in time to avoid injuring petitioner's husband; (7) failing to exercise ordinary care to anticipate the presence of persons at said crossing, and not operating the said train in a way to avoid injuring travelers entering upon the said crossing; (8) failing to signal the approach of the said train to said crossing after observing petitioner's said husband as he approached the said crossing, and failing to reduce the speed of said train to avoid injuring petitioner's said husband at said crossing; (9) the failure of the said employees of said defendant in charge of said train to exercise ordinary care and diligence to avoid injuring petitioner's said husband at said crossing after his presence became known to the said employees." It was also alleged that the engineer in charge of said train saw the deceased approaching said crossing, and negligently failed to give any warning or signal of the approach to said crossing or to check the speed of said train, and thereby killed the plaintiff's husband, and that by reason of these acts, which were alleged to be negligent, the homicide occurred.
The petition as amended contained the allegations that the plaintiff's husband was traveling a private road approaching said railroad; that at the point where said private road crosses said railroad the tracks run in a northerly and southerly direction and the road runs in an easterly and westerly direction; that on the east side of the railroad at said crossing there is a sharp turn "of seventy-five degrees or more, which extends to within three feet of the tracks of said defendant; and that there is also a bank or cut at least twelve feet high on the east side of said railroad at said crossing," and at the time, on top of said bank, for a longitudinal distance of at least four feet south of said crossing, tall bushes, grass, and weeds were growing four feet high, and travelers approaching said crossing from the east, the direction from which the deceased was approaching, could not see down the tracks in a southerly direction on account of said embankment, bushes, and grass. It was further alleged that the deceased at the time he was approaching said crossing could not see an approaching train because *375 of said embankment, bushes, grass, and the like; that he was driving his car in approaching said railroad tracks at a speed of ten miles per hour; and that the defendant's train approaching from the south was running at a speed of sixty miles per hour. The court sustained a demurrer to the petition as amended and the plaintiff excepted.
It has been decided too many times to need further citation that the amendment as allowed did not set up a new and distinct cause of action. Judge Bleckley in Ellison v. Georgia R. Co.,
We must keep in mind always the fact that the plaintiff is not entitled to recover if the deceased, by the use of ordinary care, could have avoided the consequences of the defendant's negligence. We may say in this case that the allegation that the engineer failed to keep a constant and vigilant lookout was subject to the demurrer. In Western Atlantic Railroad v.Crawford,
The alleged failure of the defendant company to keep its right of way at such crossing clear of weeds and bushes did not violate *376
any duty owed to the plaintiff's husband. The owner of the premises owes no such duty to a licensee or trespasser.Willingham v. Macon Birmingham R. Co.,
The only allegations of negligence left in the petition which were not subject to demurrer were those as to the failure of the engineer to give any signal of the approach of the train and to reduce the speed of the train so as to be able to prevent injuries to persons who might be on the crossing. A failure to blow the whistle or ring the bell on the train approaching the private crossing was not negligence per se as it might have been had the crossing been a public crossing. In W. A. R. Co. v.Meigs,
Having alleged ordinary negligence, if it also showed that the deceased by the exercise of ordinary care himself could have avoided the consequences of the defendant's negligence, the general demurrer would have properly been sustained. One who is himself a trespasser, and whose presence need not be anticipated, can hold the railroad liable only because of wanton and wilful negligence. In Lowe v. Payne,
The issue made by the pleading is whether the failure of the engineer to give any warning of the approach of the train and to have it under control, if such alleged fact be true, amounted to a lack of ordinary care under the circumstances of the case. If this be found to be true, was this fact the proximate cause of the injury? Could the plaintiff's husband by the exercise of ordinary care have avoided the result of the negligence, if any, of the defendant? We think these are questions made by the petition and they may not be solved on demurrer.
The court should have left these questions to the jury. It was error to sustain the general demurrer.
Judgment reversed. MacIntyre, J., concurs. Broyles, C. J.,dissents.
Motion for rehearing denied. MacIntyre, J., concurs. Broyles,C. J., dissents.
Dissenting Opinion
In my opinion, the petition as finally amended, properly construed (most strongly against the pleader), shows that the decedent, by the exercise of ordinary care, could have avoided the consequences to himself of the alleged negligence of the defendant. If this be true, the general demurrer was properly sustained.