Atlantic Coast Line R. Co. v. Clements
| Decision Date | 14 June 1955 |
| Docket Number | No. 35462,2,Nos. 1,35462,s. 1 |
| Citation | 92 Ga.App. 451,88 S.E.2d 809 |
| Parties | ATLANTIC COAST LINE RAILROAD COMPANY et al. v. CLEMENTS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The charge complained of in the fourth ground of the amended motion for new trial is the exact language approved by this court as good pleading (Doby v. W. L. Florence Construction Company, 71 Ga.App. 888, S.E.2d), but it was not appropriate for a charge to the jury. It intimated an opinion as to a vital issue of the case.
2. The market value of an automobile may be shown, as are other facts, by direct or circumstantial evidence.
3. Code § 68-316(a), as it existed prior to its repeal, required motor vehicles to be equipped with lights that would reveal unexpected as well as expected objects at a distance of 500 feet.
4. A photograph of the road and crossing where the plaintiff's automobile collided with the defendant's train was admissible as evidence tending to establish the plaintiff's contention that a certain condition existed at the crossing when the photograph was taken.
Clyde Clements sued Atlantic Coast Line Railroad Company and R. H. Bramlett, its locomotive engineer, for personal injuries sustained by him and damage to his automobile caused by a collision between the automobile and one of the railroad company's trains.
The petition alleged that: on February 28, 1952, the plaintiff was riding in a 1952 Buick automobile owned and operated by him; about 7:50 p.m. he and four guest passengers were riding in a southerly direction on Mock Road in Dougherty County; the plaintiff had left the Sylvester Road and turned onto the Mock Road immediately behind another automobile; the plaintiff followed the preceding automobile for approximately one-half a mile, at a speed of approximately forty miles per hour, with his headlights on; as the automobiles neared a grade crossing of the defendant and Mock Road (Mock Crossing), the plaintiff increased his speed to pass the preceding moving automobile; the plaintiff blew his horn and commenced to pass, and as he got practically around the preceding automobile, but before he had returned to his right side he observed immediately ahead on Mock Crossing the defendants' boxcars standing and blocking the crossing, with no lights or other warning; the plaintiff immediately veered to the right, at the same time applying his brakes; due to a large amount of loose gravel on the road at this point, the plaintiff's automobile was unable to obtain immediate traction; the plaintiff was thus unable to stop his automobile before striking the boxcars standing on the crossing; at the time of the collision, 7:55 p.m., the visibility of persons using this highway was impaired on account of fog, smoke, and extreme darkness in the atmosphere; the train had ample time to have cleared the crossing; the boxcars blocking the crossing were of a dark color; the crossing is heavily traveled by automobile; the defendants knew that the crossing was a public crossing and was largely traveled by the public at night generally, and that persons in automobiles were likely to be upon and passing over the crossing; there were not any automatic signaling lights or bells to warn motorists on the road of the presence of trains on the crossing; there were no guards or lights placed out in front of the standing boxcars to give travelers notice that the crossing was obstructed; there was no guard or warning to apprise the plaintiff of the crossing; the plaintiff sustained personal injuries and his automobile was damaged, the injuries and damages being specifically set forth in the petition. The petition further alleged that: the defendants' acts of negligence were the direct and proximate cause of the plaintiff's injuries and damages: in failing to have a light placed on the boxcars which would give motorists some warning of their presence, in failing to place a guard or toll a bell for the purpose of giving notice for the time being that the highway was obstructed, in failing to do the above acts when the defendants had actual knowledge of the poor visibility present at the time the boxcars were obstructing the crossing, in allowing the boxcars to remain obstructing the public crossing for an unreasonable length of time, in parking the boxcars on a public crossing; in failing to have some warning placed to afford some notice of the presence of the boxcars when the defendants could foresee the probability of someone unfamiliar with the crossing passing another automobile near or at the crossing, in committing an act of negligence per se in permitting loose gravel to remain on the approaches of the crossing in violation of Code § 94-503; in failing to uncouple the train and thus leaving the crossing open while defendants were engaged in the switching operation; in failing to have some warning placed to afford some notice of the presence of the boxcars. The plaintiff amended the petition to show: 'Plaintiff further shows that due to the fact that he was unfamiliar with said road he does not know the exact distance from the defendant's crossing at the time he commenced to pass the automobile in front of him, to his best judgment the said automobile in front of him was from 1,000 to 1,200 feet from the crossing when plaintiff commenced to pass said automobile and plaintiff, in passing said automobile, increased his speed to 55 miles per hour.' 'Plaintiff further shows that he was approximately 150 feet from the defendant's crossing before he observed the boxcars and that he could not see the said boxcars at a greater distance from the defendant's crossing due to the fact that haze, fog, smoke and extreme darkness impaired and restricted his visibility.' 'Plaintiff shows that due to loose gravel coupled with the impairment of visibility, he was unable to stop his automobile before striking the standing boxcars.' 'Plaintiff shows that defendant was negligence in removing the glass reflectors from its signs situated approximately one hundred feet from the crossing, which would have afforded him some notice as to the presence of the train.'
The defendant filed general and special demurrers. The defendant filed an answer denying that it was negligent in any manner, and alleged that the injuries sustained by the plaintiff and the damage to his automobile were due to and caused solely by the plaintiff's negligence. The answer neither admitted nor denied that the plaintiff was injured and his automobile damaged as alleged in the petition.
The evidence submitted upon the trial of the case is not set out in this statement of facts for the reason that it is extensively discussed in the opinion that is to follow.
The court overruled the demurrers to the petition. The defendant excepted to the court's overruling the demurrers, but abandoned the exceptions in this court.
The case resulted in a verdict for the plaintiff for $2,000 special damages and $200 general damages. The defendant made a motion for a new trial, which after having been amended by adding several special grounds was denied by the court. To the denial of its amended motion for new trial the defendant excepted.
Peacock, Perry, Kelley & Walters, Albany, for plaintiff in error.
Robert W. Reynolds, Albany, for defendant in error.
In this opinion the plaintiff in error is referred to as the defendant or railroad company and the defendant in error as the plaintiff.
The motion for a new trial contained the usual general grounds, and eight special grounds.
1. The fourth ground of the motion for a new trial asserts that the court erred in charging the jury:
The charge complained of is in the exact language approved by this court in the case of Doby v. W. L. Florence Construction Co., 71 Ga.App. 888, 32 S.E.2d 527. The Doby case came to this court on exceptions to a judgment of the trial court sustaining a demurrer. We held the language might be pleaded and proved in showing why a motorist did not observe a barricade across the road on which he was traveling. We did not hold that the language was appropriate to be given in charge to the jury.
It has been held that language employed by appellate courts in demonstrating the correctness of their rulings is often argumentative and otherwise objectionable as a charge to the jury. Atlanta & West Point Railroad Co. v. Hudson, 123 Ga. 108, 51 S.E. 29. For instance it has been held many times by our appellate courts that a railroad track is a place of danger, and that one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track; it is nonetheless error for a trial judge to charge a jury in such language. Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708, 39 S.E. 306, 54 L.R.A. 802; Western & Atlantic R. Co. v. Jarrett, 22 Ga.App. 313, 96 S.E. 17.
Probably in no instance is the rule here referred to more obviously applicable than when an appellate court rules on that which may be pleaded and proved. To hold that some particular matter may be pleaded and proved is certainly not authority that the trial court may in his charge intimate that it has been proved.
One of the vital issues of the instant case was whether the cars on the crossing, or the fog that the plaintiff avers obscured them from his view was of such coloring and composition that the artificial lights of the plaintiff's automobile did not reveal them at a...
To continue reading
Request your trial
-
Bill Spreen Toyota, Inc. v. Jenquin
...during this 10-week period has been suggested. The evidence was not insufficient as a matter of law. Atlantic Coast Line R. Co. v. Clements, 92 Ga.App. 451, 88 S.E.2d 809 (1955). "Automobiles today are items well within the common knowledge of everyone including jurors." Gwinnett Commercial......
-
Central of Georgia Ry. Co. v. Brower, 39287
...Co. v. Gray, 113 Ga. 424, 38 S.E. 992. See also Scott v. Powell Paving Co., 43 Ga.App. 705, 159 S.E. 895; Atlantic Coast Line R. Co. v. Clements, 92 Ga.App. 451, 88 S.E.2d 809. The rulings in the foregoing cases involved facts which are stronger in support of the defendant's contentions tha......
-
Atlantic Coast Line Railroad Company v. Kammerer
...v. Marshall, 1954, 89 Ga.App. 740, 81 S.E.2d 228 and 1955, 93 Ga.App. 134, 91 S.E.2d 96, companion case Atlantic Coast Line R. Co. v. Clements, 1955, 92 Ga.App. 451, 88 S.E.2d 809, Atlantic Coast Line R. Co. v. Coxwell, 1955, 93 Ga.App. 159, 91 S.E. 2d 135 which overrules, in part, the Stai......
-
Hodges v. Vara, A04A1644.
...Inc. v. Williams Investigative & Security Svcs., 215 Ga.App. 194, 197(1), 450 S.E.2d 427 (1994); Atlantic Coast Line R. Co. v. Clements, 92 Ga.App. 451, 455(2), 88 S.E.2d 809 (1955). Where the original purchase price could only be estimated but not be reconstructed, slight, any, or some evi......