Atl. Coast Line R. Co v. Adams

• Decision Date: 10 December 1909
• Docket Number: (No. 1,963.)
• Citation: Atl. Coast Line R. Co v. Adams, 7 Ga.App. 146, 66 S.E. 494 (Ga. App. 1909)
• Parties: ATLANTIC COAST LINE R. CO. et al. v. ADAMS.
• Court: Georgia Court of Appeals

(7 Ga.App. 146)

66 S.E. 494

ATLANTIC COAST LINE R. CO. et al.

v.ADAMS.

(No. 1, 963.)

Court of Appeals of Georgia.

Dec. 10, 1909.

1.Railroads (§§ 244,373,400^*) — Injuries to Persons on Track—Failure to Observe Crossing Law — Statutory Provisions — Applicability to Crossing in City.

Where a person was injured by the running of a railroad train, while on the track at a point between two public street crossings in a city, it was not erroneous to instruct the jury that, although the omission on the part of the engineer to comply with the statutory requirements as to giving signals and checking the speed of the train would not amount to negligence per se, yet the jury might consider such omission in connection with all the evidence for the purpose of determining if the railroad company was negligent.Air Line Ry. Co. v. Gravitt, 93 Ga. 370, 20 S. E. 550(3, 6);Macon & Birmingham Ry. Co. v. Parker, 127 Ga. 471, 56 S. E. 616(3);Southern Ry. Co. v. Pope, 129 Ga. 842, 60 S. E. 157 (2).The law contained in sections 2222and2224 of the Civil Code of 1895 applies to street crossings incities, and this is true although there may be a valid municipal ordinance on the same subject.The ordinance would be supplementary to the statute, providing an additional safeguard to person and property.Both statute and ordinance, when applicable and not in conflict, should be enforced, and, where in conflict, the statute would control.Central R Co. v. Russell, 75 Ga. 810;A. & W. P. R. Co. v. Newton, 85 Ga. 525, 11 S. E. 776;Central Ry. Co. v. Smith, 78 Ga. 694, 3 S. E. 397.

[Ed. Note.—For other cases, seeRailroads, Dec. Dig. §§ 244, 373, 400.*]

2.Railroads (§ 401^2-*)—Injubies to Person on Track—Instruction.

The instruction to the jury embracing the well-settled principle of law that, if the place where the plaintiff was injured was a place much frequented, with the knowledge of defendants, by people walking to and fro, or being on the track at that point, it was the duty of the engineer on that engine to have kept a vigilant outlook, and, if he failed to do so, the defendant may be liable, was in substance correct, and was not erroneous for any of the reasons assigned.Shaw v. Georgia R. Co., 127 Ga. 8, 55 S. E. 960;Georgia R. Co. v. Cromer, 106 Ga. 296, 31 S. E. 759;Bullard v. Southern Ry. Co., 116 Ga. 644, 43 S. E. 39.

[Ed. Note.—For other cases, seeRailroads, Dec. Dig. § 401.*]

3.Railroads (§ 373*)—Injuries to Persons on Track—Action—Instructions.

Where, in an action to recover damages from a railroad company for an injury caused by the running of a train in the limits of a city, it is shown that the train, at the time of the injury, was running at a greater rate of speed than that prescribed by a valid municipal ordinance, the company would be liable, unless it proved that the injury was caused by the negligence of the injured person, or that he could, in the exercise of ordinary care, have avoided the consequences of the company's negligence.Central R. Co. v. Smith, 78 Ga. 694, 3 S. E. 397;Central R. Co. v. Tribble, 112 Ga. 865, 38 S. E. 356.

[Ed. Note.—For other cases, seeRailroads, Dec. Dig. § 373.*]

4.Municipal Corporations (§ 120*)—Railroads (§ 236*)—Question of Law or Fact-Construction of Ordinance—Ordinance Regulating Speed—Reasonableness.

"The duty of construing a pertinent city ordinance which has been introduced in evidence, and of explaining its meaning to the jury, devolves upon the judge."City of Columbus v. Ogletree, 102 Ga. 293, 29 S. E. 749.And whether an ordinance regulating the speed of trains in a city is reasonable or unreasonable is usually a question for the court.Central R Co. v. B. & W. R. Co., 87 Ga. 392, 13 S. E. 520.The ordinance of the city of Thomas-ville requiring all railroad trains coming into and going out of the city "to slow down to a speed, after entering the corporate limits of the city, not to exceed ten miles an hour, " reasonably construed, means that no train shall exceed that rate of speed when and after it enters the limits of the city; the purpose of the ordinance being to protect person and property within and throughout the entire limits of the city from the danger of fast running trains.The court in effect so construed the ordinance.

[Ed. Note.—For other cases, seeMunicipal Corporations, Cent. Dig. § 280;Dec. Dig. § 120;* Railroads, Dec. Dig. § 236.*]

(Syllabus by the Court.)

Error from City Court of Thomasvllle; W. H. Hammond, Judge.

Action by G. A. Adams against the Atlantic Coast Line Railroad Company and another.Judgment for plaintiff, and defendants bring error.Affirmed.

Adams brought suit against the Atlantic Coast Line Railroad Company and W. W. Phillips, its engineer, to recover damages for the loss of his foot, alleging that his foot was cut off by a train of the railroad company, operated by Phillips, as engineer, about 12 o'clock at night on July 6, 1908, at a point between two streets In the city of Thomasville, Ga., where he had been placed, on or near the track, by two men who had sandbagged and robbed him and left him unconscious.He charges: That the engineer operating the train was negligent In violating the city ordinance regulating the speed of trains in the city; that the engineer was running the train in violation of the public crossing law of the state, and was running It at a reckless rate of speed in a place much frequented, within the knowledge of the railroad company and its engineer, by pedestrians; and that the engineer could, by the exercise of ordinary care, have seen him lying on the track in time to have stopped the train before running over his foot.A demurrer to the petition was overruled; and this ruling is assigned as error.The trial resulted in a verdict against the defendants, and the overruling of their motion for a new trial is assigned as error.The motion contained the general statutory grounds, and the following exceptions to the charge of the court:

(1)The court erred In charging the jury as follows: "The general laws of this state, gentlemen of the jury, require that an engineer in charge of a locomotive, as he approaches a public street or road, shall check and keep checking the speed so as to stop in time should any person or thing be crossing the track at said public street or road.A failure to do this is negligence per se for which the company might be held liable, If the injury had occurred on the crossing.Now, when the injury does not occur on the crossing, but occurs so near the crossing that a failure to observe this law may be part of the res gestre of the transaction, then, and...