Atlantic Coast Line R. Co. v. Strickland

• Decision Date: 14 February 1953
• Docket Number: No. 34203,No. 1,34203,1
• Citation: 87 Ga.App. 596,74 S.E.2d 897
• Parties: ATLANTIC COAST LINE R. CO. v. STRICKLAND
• Court: Georgia Court of Appeals

Page 897

74 S.E.2d 897

87 Ga.App. 596

ATLANTIC COAST LINE R. CO. v. STRICKLAND.

No. 34203.

Court of Appeals of Georgia, Division No. 1.

Feb. 14, 1953.

Syllabus by the Court.

1. Where the petition alleged that the plaintiff was injured while he was working as a flagman at a public crossing in an incorporated municipality through which the defendant's line of tracks ran when he was knocked under a box car being pushed by the defendant's switch engine when a pedestrian that the plaintiff was flagging failed to heed his signal and ran into him and propelled him under the said box car; and, where the petition alleged various acts of negligence on the part of other employees of the defendant, as constituting the proximate cause of the injury, among such acts being the failure on the part of the engineer and another flagman to keep a constant and vigilant lookout ahead of the train and to observe the plaintiff's signal to them to stop the train--the fact that, under the allegations of the petition, the pedestrian, who ran into and propelled the plaintiff beneath the train, may have been negligent also, would not defeat the plaintiff's right to recover from the defendant for the injuries received as a result of its negligence, since the defendant's employees were bound to anticipate that some injury might result from their negligent failure to observe the crossing and to heed the plaintiff's signals to stop the train. The petition shows that the negligence of the defendant's employees contributed as a proximate cause of the plaintiff's injuries in some degree, and in an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. that was sufficient.

2. Where the facts pleaded showed that the plaintiff was fully aware of the approach of the train to the crossing, he having signalled the engineer to make the movement, and being on the crossing to flag the same to protect the public, the bare allegation of negligence on the part of the defendant's servants in failing to blow the whistle or ring the bell to signal the approach of the train to the crossing shows no causal connection between such failure and the injury to the plaintiff, and special demurrers to those allegations of negligence should have been sustained.

(a) Where a deficiency in the pleading, as set forth above was pointed out by appropriate special demurrer, which was erroneously overruled by the trial court and exception preserved, the subsequent introduction of evidence and rendition of a verdict in favor of the plaintiff will not aid the defective pleading.

3. The allegations of the petition to the effect that the defendant's train was so operated that it cut off the plaintiff's opportunity to escape from the path of the pedestrian, taken in connection with other allegations, were sufficient to inform the defendant of the contentions of the plaintiff in this regard, and were not subject to the special demurrers interposed.

4. Allegations that the defendant's engineer was negligent in failing to keep a constant and vigilant lookout ahead when operating across the crossing contrary to the provisions of the Code, §§ 94-506 and 94-507 were not subject to the demurrer that, since it appeared from other allegations of the petition that the plaintiff was aware of the approach of the cars to the crossing, the defendants owed him no greater duty to keep a lookout ahead at the crossing than elsewhere, and that the Code sections thus pleaded were irrelevant and immaterial to the cause of action alleged.

(a) The Code sections referred to are a part of the general law enacted to protect members of the public who are lawfully on railroad crossings, and the fact that the plaintiff was on the crossing as a member of the train crew and as an employee of the defendant did not make him any less a member of the general public or any less entitled to the protection afforded by the laws pleaded.

5. The trial court erred in so charging the jury as to submit for their consideration the question of the negligence of the fireman on the defendant's engine, and in charging the law respecting the same, where the evidence wholly failed to show any negligence on the part of the fireman or to support the allegations of negligence made against the fireman.

6. Where the evidence as to the issues really involved is in sharp conflict, it is error for the trial judge to submit for the jury's consideration a question not raised by either the pleadings or the evidence; and where there were no pleadings and no evidence introduced relating to the violation of rules of the Interstate Commerce Commission, a charge, that the plaintiff contended that the defendant had violated certain of such rules, and that it was for the jury to say whether the defendant had violated such rules, was erroneous.

7. Proof of explicit voluntary admissions by the opposite party against his interest are prima facie evidence of the facts admitted, and a charge by the court relating to evidence of such an admission made by the plaintiff, which limited such evidence for impeachment purposes only, was erroneous.

8. In view of the ruling made in division 2 of the opinion, it was error for the trial court to so charge the jury as to submit for their consideration the question of whether the engineer was guilty of negligence in failing to blow the whistle or ring the bell on the locomotive.

9. The ground of the motion for new trial complaining of the excessiveness of the verdict is not considered.

10. The general grounds of the motion for a new trial are not considered.

Bennett Strickland sued in the Superior Court of Wayne County, under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., Atlantic Coast Line Railroad Company for personal injuries. The case made by the petition was substantially as follows: that, at the time of the plaintiff's injuries he was employed by the defendant in the capacity of switchman in the defendant's yards in Jesup; that on the night of September 2, 1950, at about 8:30 o'clock he was working as a part of a crew of four men on a certain switch engine engaged in switching cars on the defendant's tracks over and near the Orange Street crossing in the said city of Jesup; that at that point there are nine tracks, running parallel, and lying in a generally north and south direction, and Orange Street runs in a generally east and west direction; that the three westernmost tracks at the crossing are the team or dray track, the Clark track, and the engine track, in that order from west to east; that, about 20 feet south of the south edge of Orange Street, there is a switch for turning cars from the Clark track to the team track, the two said tracks converging at that point; that the engine headed north with five cars coupled in the front thereof was standing on a cross-over track from the engine track to the Clark track with the northernmost car of the cut just south of that switch; that the crew was preparing to place the cars on the Clark track north of the crossing; that it was the duty of the plaintiff to align the switch for the proper movement of the cars and then to flag the crossing; that for the latter purpose, and for the purpose of signaling the engine crew, the plaintiff carried an electric lantern furnished by the defendant; that the night was dark and the weather fair, but that, because of a box car coupled immediately in front of the engine which was higher than the engine, and which obstructed the headlight on the front of the engine, said headlight did not throw any light upon the crossing or ahead of the string of cars; that there was no light on the front end of the front box car; that the railroad provided no light for the crossing, the nearest lights being street lights suspended over Orange Street more than 100 feet east and west of the crossing; that the plaintiff aligned the switch and proceeded to the crossing to flag the same; that he took his position in full view of the engineer, and observing no traffic approaching the crossing from either direction, he gave the engineer a signal that the switch was properly set; that immediately thereafter two automobiles approached from the west on Orange Street and on being flagged by the plaintiff turned north on a street parallel to the defendant's tracks; that immediately thereafter the engineer began pushing the string of cars northward across the crossing; that at that time the other switchman of the crew was walking in a southerly direction toward the engine and in full view of the plaintiff and the engineer; that the plaintiff looked again to the east and observed a person about the easternmost track of such crossing running in a northwesterly direction across the defendant's tracks; that instantly the plaintiff began to wave his lantern across the front of the lower part of his body to warn such person of the approach of the train and at the same time began shouting to such person; that at that time the train was approximately 35 feet south of the plaintiff and, "before same had moved closer than 25 to 30 feet of petitioner, it became apparent to petitioner that such person who continued running across such crossing, was apparently oblivious to the presence of such train, and was not heeding his signals and shouts, and petitioner immediately, while in full view of the engineer, gave the engineer the stop signal by violently and frantically waving his lantern east and west across the track four or five times, and then immediately began again his violent and frantic signals and cries to such person to stop. Such person was still apparently oblivious to the presence of such train, and did not heed petitioner's signals and shouts, and continued running across such crossing in a northwesterly direction. When the person reached a point approximately 30 feet of petitioner he discovered that it was a woman, and petitioner rapidly moved northwesterly faster than the...