Atlantic Coast Line R. Co. v. Grimes
| Decision Date | 01 July 1959 |
| Docket Number | No. 1,No. 37717,37717,1 |
| Citation | 99 Ga.App. 774,109 S.E.2d 890 |
| Parties | ATLANTIC COAST LINE RAILROAD COMPANY et al. v. Lizzie B. GRIMES |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The evidence creates an issue of fact for the jury as to the negligence of the defendants and whether this negligence was the proximate cause of the death of plaintiff's husband.
2. The court did not err in permitting the son of the deceased, his business partner, to testify from his own personal knowledge as to the earnings of his father, such testimony not being predicated on the books of account.
3. The charge complained of states a correct principle of law as to what is proper control.
4. Charging an inapplicable portion of a Code section is harmless error where it does not appear that the jury was misled thereby.
Mrs. Lizzie Bell Grimes filed her action in the Superior Court of Coffee County against the Atlantic Coast Line Railroad Company and James P. Braswell, its engineer, seeking to recover damages on account of the death of her husband, J. Clark Grimes, who was struck and killed by a freight train. At the close of all the evidence the defendants' motion for a directed verdict was denied by the court. The jury returned a verdict for the plaintiff. The defendants' motion for a judgment notwithstanding the verdict and their amended motion for a new trial were denied and they except.
Douglas W. Matthews, Atlanta, R. A. Moore, Douglas, Jay, Garden & Jay, Allan C. Garden, Fitzgerald, for plaintiff in error.
Dewey Hayes, Douglas, McDonald & McDonald, J. C. McDonald, Fitzgerald, for defendant in error.
1. J. Clark Grimes, husband of the plaintiff, was struck and killed on June 26, 1956, by a freight train of the defendant railroad operated by defendant Braswell while Grimes was attempting to crose the main-line track on a paved road in the city of Ambrose, Georgia. The evidence discloses that Grimes operated a grocery store to the northeast of the crossing; that in the late afternoon he had proceeded to the postoffice, which is located in a building to the southeast of the crossing; that the shortest and most convenient route from his store to the postoffice was by way of the paved state highway which crossed the railroad in the center of the village; that the crossing was equipped with flange boards which were approximately the same height as the rails and afforded relatively smooth passage across the tracks for both vehicles and pedestrians; that Grimes, as well as others, had habitually crossed the railroad at this point for some time; that on several occasions the railroad station agent had cautioned Grimes about crossing the railroad ahead of trains and told him to watch for the train. There were three tracks at the crossing point, a 'house track' on the north, the main line in the center and a 'pass track' on the south, the distance betwen the center of each side track and the center of the main line track being about 15 feet. The evidence shows that shortly before 5 p. m. Grimes left the postoffice and proceeded in a northerly direction along the paved road, apparently intending to return to his store across the tracks. At this time the freight train was approaching the crossing from the east, to the right of Grimes. The weather was clear and there was nothing at or near the crossing in this direction to obstruct the vision either of pedestrians or of the train crew. At a point on or just across the 'pass track' south of the main line, Grimes looked in the direction of the train and proceeded onto the main line where he was struck by the right-hand side of the locomotive and instantly killed. Several witnesses for the defendants testified that as Grimes proceeded onto the track he quickened his pace, but Riley Carver, also a witness for the defendants, testified that 'if he changed his pace I couldn't tell it.' Grimes had suffered for some twenty years from a condition described by the witnesses as 'palsy', which caused him to walk in a stooped condition and, according to witness Jowers, 'he was very much arched * * * and when he looked he had to turn his whole head and he was so that he couldn't turn it very well * * * and he would walk in more or less surges.' There is no evidence to indicate any substantial defect in Grimes' hearing or vision.
The defendant Braswell, engineer of the freight train, testified that as he approached Ambrose he had switched on the automatic bell ringer and had sounded regular crossing signals on the horn of the locomotive for two dirt road crossings some distance to the east of the paved crossing, the second of which is referred to as the 'gin house crossing', being some 900 feet east of the paved crossing; that he first saw Grimes 'about the time I come across that gin house crossing'; that Grimes was then 'between 25 to 40 feet of the * * * main line track'; that he had started to blow the standard signal for the paved crossing when he saw Grimes coming and that he immediately changed to the emergency signal of short blasts on the horn; that when Grimes was 10 to 15 feet from the main line track 'he turned his head * * * and looked right straight up at the engine', stopped momentarily and then started to go across the track, at which time the engineer applied the emergency brakes to the entire train; that when he applied the brakes he was 250 to 300 feet east of the paved crossing and was traveling about 55 miles per hour; that no effort was made to stop or slow down the train until the application of the emergency brakes; that Grimes was struck by the right front portion of the locomotive; that he did not have any idea Grimes was going to walk out on the track and when he realized that Grimes would walk in front of the train he immediately applied the emergency brakes; that he knew Grimes personally, was aware of his physical condition, and recognized him as he approached the crossing.
Brakeman Silas McGowan was the only other member of the train crew in the cab of the locomotive as it approached Ambrose. He testified that the bell was tolling and that regular signals were sounded for the gin house crossing; that he first saw a man approaching the track along the paved road when the train was in the vicinity of the gin house crossing; that when the man kept on walking he told the engineer, 'Look out, he don't see us,' and that is when the engineer changed the whistle signals to emergency; that as the man was 'about two steps from the crossing he looked and saw the train and apparently made up his mind to cross anyway'; that when the man started on across the track the engineer put on the emergency brakes which, as best he remembered, was between 200 and 300 feet from the crossing, and that the train was running about 50 miles per hour.
The defendants also introduced evidence tending to show that the bell and horn of the locomotive and the brakes of the intire train were in good working condition on this run.
A railroad company and its employees engaged in the operation of its trains must exercise ordinary care in so controlling the movements of such trains as to avoid doing injury to persons or property which may be on a crossing within the corporate limits of cities, towns or villages along its line. Code, § 94-507; Pollard v. Savage, 55 Ga.App. 470, 190 S.E. 423, and cases cited. It is well settled that 'what amounts to negligence, contributory or comparative negligence, porximate cause, etc., are ordinarily questions for the jury under appropriate instructions, and such questions will not be determined by the...
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...notwithstanding the verdict or for new trial, since there was at least some evidence to support the verdict. Atlantic C. L. R. Co. v. Grimes, 99 Ga.App. 774, 109 S.E.2d 890 (1959); Ga. Sou. & Fla. R. Co. v. Strickland, 106 Ga.App. 411 (1), 126 S.E.2d 884 (1962); Seaboard C. L. R. Co. v. Mit......
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...proper control of the conveyance, whatver be its nature,' which is a correct principle of law from Atlantic Coast Line R. Co. v. Grimes, 99 Ga.App. 774, 781(3), 109 S.E.2d 890, 895 (1959), was adequately and substantially covered by the charge in fact given by the trial judge. There was no ......
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