Wise v. Atlanta & W. P. R. Co.

• Decision Date: 26 September 1939
• Docket Number: 27535.
• Citation: 6 S.E.2d 135,61 Ga.App. 372
• Court: Georgia Court of Appeals
• Parties: WISE v. ATLANTA & W. P. R. CO.

6 S.E.2d 135

61 Ga.App. 372

WISE v. ATLANTA & W. P. R. CO.

No. 27535.

Court of Appeals of Georgia, Division No. 1.

September 26, 1939

Rehearing Denied Dec. 16, 1939.

Syllabus by the Court.

A H. Freeman, Stonewall H. Dyer, and Ellis G. Arnall, all of Newnan, for plaintiff in error.

Heyman & Heyman, of Atlanta, and Stanford Arnold, of Newnan, for defendant in error.

GUERRY Judge.

This is the third appearance of this case in this court. See 54 Ga.App. 666, 188 S.E. 915; 58 Ga.App. 200, 198 S.E. 126. The plaintiff sued for the homicide of her husband. The case as originally brought was predicated on the fact that the crossing at which the deceased met his death because of the operation of defendant's train was a public crossing. The former decision by this court held that the evidence failed to show that that crossing was a public crossing and for that reason the duties as alleged and proved were applicable to a person injured at a public crossing, and not to a private-crossing injury.

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 look-out along the tracks to avoid doing injury to any person on the track (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 travelling 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 12 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 travellers 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 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 Railroad Co., 87 Ga. 691, 13 S.E. 809, has decided this question in an exhaustive and brilliant opinion. Chief Justice Simmons in City of Columbus v. Anglin, 120 Ga. 785 (5), 48 S.E. 318 said "No new and distinct cause of action is added to a petition by an amendment which contains additional matter descriptive of the same wrong, pleaded in the original petition, and which does not pead any other or different wrong." (Italics ours). The demurrer raising the question as to a new cause of action was insufficient.

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 allegations that the engineer failed to keep a constant and vigilant lookout was subject to the demurrer. In Western & Atlantic Railroad v. Crawford, 47 Ga.App. 591, 170 S.E. 824, this court said that such a ground of negligence was immaterial and irrelevant in view of the further allegation, as in this case, that a deep cut prevented persons approaching from the direction from which the plaintiff's husband was approaching from seeing the train until they were within five feet of the crossing. If, as a matter of fact, as is alleged in this case, the twelve-foot embankment and the four-foot growth of bushes and weeds on top thereof prevented the plaintiff's husband from seeing the train approaching said crossing, the same obstructions would have prevented the engineer from seeing the deceased while he was approaching such crossing, no circumstances being alleged which would show any exception or prevent such conclusion from being true. The failure to keep a lookout when it would have been of no avail does not ordinarily contribute to the injury.

The alleged failure of the defendant company to keep its right-of-way at such crossing clear of weeds and bushes did not violate 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 Railway Co., 113 Ga. 374, 38 S.E. 843. Code § 105-402, provides: "A licensee...