Atlantic Coast Line R. Co. v. Clark

• Decision Date: 31 January 1956
• Docket Number: No. 2,No. 35915,35915,2
• Citation: 91 S.E.2d 386,93 Ga.App. 278
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. J. L. Clark, Sr., Administrator
• Court: Georgia Court of Appeals

Page 386

91 S.E.2d 386

93 Ga.App. 278

ATLANTIC COAST LINE RAILROAD COMPANY v.J. L. Clark, Sr., Administrator.

No. 35915.

Court of Appeals of Georgia, Division No. 2.

Jan. 31, 1956.

Syllabus by the Court.

1.The general and special demurrers are without merit.

2.The evidence is sufficient to sustain the verdict as to the general grounds.

Mrs. J. L. Clark brought suit against the Atlantic Coast Line Railroad Company for damages allegedly sustained by her and resulting from a collision between one of the trains of the defendant and an automobile belonging to the plaintiff, being driven by her son and agent, J. L. Clark, Jr. Recovery is sought for damage to the automobile.

The petition, brought in two counts, alleged in count 1 as follows:

'2.Defendant's railroad tracks in the City of Cairo, run in an east-west direction and intersects with 3rd Street, which runs in a north-south direction, in the City of Cairo, said street being a public street and used generally and frequently by the public, and known to be a public street and used frequently by the public, by the defendant.

'3.On December 20, 1954, between 6:30 and 6:45 P.M., plaintiff's car was being driven by her agent and son, with her permission, in a southerly direction on 3rd Street N.E. in a careful and prudent manner, and in an attempt to cross over defendant's tracks at said intersection, was hit by one of defendant's cars being pushed back wards across said public crossing by an agent and employee of defendant who is unknown to plaintiff but known to defendant.

'4.Plaintiff shows that it was dark, that the defendant had no lookout, no flagman, gave no signal either with its whistle or bell to signify the approach of its train to said public crossing, but did, with total disregard for the property rights of plaintiff, negligently back said train across said public crossing and into plaintiff's automobile.

'5.Upon hitting plaintiff's automobile, defendant's agent, and/or agents continued to push plaintiff's car down the defendant's tracks for a distance of approximately 15 feet thereby damaging beyond repair said automobile.

'6.Plaintiff shows that her car, which was a 1949, Oldsmobile 88, and had a market value of $850 prior to being destroyed by the negligent acts of defendant's agents, and said automobile after being struck had a value of $100 thereby damaging plaintiff in the sum of $750.'

By amendment the following was added to paragraph 4: 'Contacting plaintiff's automobile in the left front door with such impact that the frame was bent and the chassis pushed over on said frame approximately two inches.'

Count 2 was substantially the same as Count 1, with the further allegation that the negligence on the part of the defendant was wilful and wanton.The plaintiff alleged that the defendant was negligent in the following particulars: '(a) Failure to keep a proper, diligent, constant and vigilant lookout along the track ahead of the train (b) Failure to exercise due care in order to avoid injury to plaintiff's automobile (c) Failure to use ordinary care in the backing of said train over a frequently used public crossing (d) Failure to give any warning of any kind--bell or whistle--in approaching or passing over said public crossing (e) Failure to stop said locomotive and cars and thereby avoid injuring plaintiff's automobile (f) Negligent backing, in the dark of a train across a public crossing without the giving of any warning to plaintiff.'

The defendant filed general and special demurrers as follows:

'1.Defendant demurs generally to the petition of the plaintiff for the reason that said petition fails to set out a cause of action against defendant.

'2.Defendant demurs to the petition of the plaintiff for the reason that the petition is vague, ambiguous, uncertain and indefinite in that it does not contain any allegation as to the width of Third Street, N. E.

'3.Defendant demurs to paragraph numbered 3 and particularly to the words 'in a careful and prudent manner,' for the reason that said paragraph and said quoted words state a conclusion of the pleader which is not supported by any fact alleged anywhere in said petition.

'4.Defendant demurs to paragraph number 3 for the reason that said paragraph is vague, ambiguous, uncertain and indefinite in that: (a) It fails to allege whether or not the driver of the automobile was keeping a look-out ahead (b) It fails to allege how far in feet the driver of the automobile was from the train when he saw the train (c) It fails to allege whether or not the driver of the automobile looked to his left before entering the intersection.And (d) It fails to allege whether or not the driver of the automobile saw the flagman.

'5.Defendant demurs to paragraph numbered 6...