Atlantic Coast Line R. Co. v. Associated Transports, Inc., 36267

• Decision Date: 19 October 1956
• Docket Number: No. 2,No. 36267,36267,2
• Citation: 95 S.E.2d 755,94 Ga.App. 563
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY v. ASSOCIATED TRANSPORTS, Inc
• Court: Georgia Court of Appeals

Page 755

95 S.E.2d 755

94 Ga.App. 563

ATLANTIC COAST LINE RAILROAD COMPANY v. ASSOCIATED TRANSPORTS, Inc.

No. 36267.

Court of Appeals of Georgia, Division No. 2.

Oct. 19, 1956.

Rehearing Denied Nov. 16, 1956.

Syllabus by the Court.

1. There is sufficient evidence to sustain the verdict.

2. The case presents a jury question. The trial judge committed no reversible error of law.

Associated Transports, Inc., filed suit to recover for damages to one of its vehicles and the cost of removing certain cargo from the scene of the collision to a warehouse, alleging substantially that the Atlantic Coast Line Railroad Company, was negligent in backing a locomotive onto the crossing without maintaining a proper lookout and in failing to maintain a flagman at the crossing. Allegations of negligence were set out, but denied by the defendant, and the issue joined. The trial resulted in favor of the plaintiff.

The defendant filed a motion for a new trial, which was amended by the addition of three special grounds. The motion was denied, and it is on this judgment that error is assigned here.

The evidence in the case revolves around testimony to the effect that the collision occurred in the freight yards of the defendant. The M. & M. Warehouse Company operates a warehouse in the freight yard. The plaintiff's truck was struck by a locomotive of the defendant while cargo was being hauled in the plaintiff's truck to the warehouse. The truck and trailer was pushed over on its side and damaged. The cargo was removed to the warehouse. Boxcars standing on the track which ran parallel to the track on which the collision occurred obstructed vision of both the driver of the truck and the engineer.

Troutman, Sams, Schroder & Lockerman, Tench C. Coxe, Atlanta, for plaintiff in error.

Henry M. Quillian, Jr., Bryan, Carter, Ansley & Smith, Atlanta, for defendant in error.

GARDNER, Presiding Judge.

Counsel deal with the case by taking up the three special grounds in their argument. We will follow the same procedure in this opinion.

1. Special ground 1 assigns error because the court erred in refusing to give the following request to charge: 'I charge you that where the view or the hearing of a traveler approaching a railroad crossing is obstructed, he is under the duty of using greater care and prudence in looking and listening for approaching trains than where there is no obstruction. The degree of care which he must exercise in such cases, particularly where he is familiar with the crossing, must be in proportion to the increase of danger, and must be such care and prudence in looking and listening as an ordinarily prudent man would exercise under like circumstances of obstructions to view or hearing, the question of the exercise of proper care and prudence in looking and listening depending upon the circumstances at the time and crossing.' This request to charge was pertinent and applicable under the facts of this case. In Atlantic Coast Line R. Co. v. Anderson, 75 Ga.App. 829, 831, 44 S.E.2d 576, 577 this court said: 'As a general rule a ground of a motion for new trial complaining of the refusal of the court to charge a written request is not valid where it appears that in the charge given the request was substantially covered; but there are exceptions to this rule.' The court charged the jury in part as follows: 'You may take into consideration all of the facts and circumstances of the case as disclosed to you by the evidence * * *.' The charge of the court reveals that the court charged that both the plaintiff and the defendant were bound to exercise ordinary care. The court then instructed the jury that 'ordinary care, as applied to the plaintiff, has the same definition as that already given you, that is, the plaintiff's driver must exercise the degree of care that an ordinarily prudent person would exercise under the same or similar circumstances * * *' The court further charged: 'I charge you that the precise thing which every person is bound to do before going on a railroad track is that which every prudent man would do under like circumstances; and if there is a place of safety from which a prudent man would look upon the course from which oncoming trains might come, the driver of a vehicle should look upon such course from that point, and so take the necessary precautions both for himself and his vehicle.' The court also charged in this connection that a traveler over a private railroad crossing is bound to exercise more care than at a public crossing....