Atlantic Coast Line R. Co. v. Marshall, 34842

• Decision Date: 14 January 1954
• Docket Number: No. 34842,No. 1,34842,1
• Citation: 89 Ga.App. 740,81 S.E.2d 228
• Parties: ATLANTIC COAST LINE R. CO. et al. v. MARSHALL
• Court: Georgia Court of Appeals

Page 228

81 S.E.2d 228

89 Ga.App. 740

ATLANTIC COAST LINE R. CO. et al. v. MARSHALL.

No. 34842.

Court of Appeals of Georgia, Division No. 1.

Jan. 14, 1954.

Adhered to on Rehearing Feb. 27, 1954.

SYLLABUS BY THE COURT

1. The court did not err in overruling the general demurrer to the petition.

2. The court erred in denying the motion for a new trial on the general grounds.

Horace C. Marshall sued Atlantic Coast Line Railroad Company and R. H. Bramlett, its locomotive engineer, for personal injuries sustained by the plaintiff in a collision between one of the railroad's trains and an automobile, belonging to and being driven by Clyde V. Clements, in which the plaintiff was riding as a guest passenger. The defendants filed general and special demurrers, which were overruled; and to this judgment the defendants filed exceptions pendente lite and assign error thereon. The jury returned a verdict for the plaintiff. The motion for new trial was denied, and the defendants excepted to that judgment.

The petition as amended alleged that, on February 28, 1952, the plaintiff was riding as guest passenger in a 1951 Buick automobile owned and operated by Clyde V. Clements; about 7:50 p. m. the plaintiff and three other guest passengers were riding in Clements' automobile, going in a southerly direction on Mock Road in Dougherty County; Clements had left the Sylvester Road and turned onto the Mock Road immediately behind another automobile; Clements followed the preceding automobile for approximately one-half a mile, at a speed of approximately forty miles per hour, with his headlights on; during the time he was following the preceding automobile, Clements followed at a distance of four or five car lengths; at all times while behind the preceding automobile Clements had his lights dimmed, which was required in order to prevent any glare in the eyes of the driver of the preceding automobile; as the automobile neared the grade crossing of the defendant and Mock Road (Mock Crossing), Clements increased his speed to pass the preceding moving automobile; Clements 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 turned on his bright lights and observed immediately ahead on Mock Crossing the defendants' box cars standing and blocking the crossing, with no lights or other warning; Clements 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, Clements' automobile was unable to obtain immediate traction; Clements was thus unable to stop his automobile before striking the box cars 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 and crew were in the act of switching to pick up empty box cars at a siding at the time of the collision; the engine was not coupled to the train at the time of the collision; the train had ample time to have cleared the crossing; the plaintiff and Clements were unfamiliar with the crossing; Clements was driving the automobile in the exercise of ordinary care and diligence and did everything possible to extract himself and his guest passengers from the trap created by the defendants' negligence; the crossing and its approaches were elevated approximately two feet above the surrounding level of the highway; the box cars blocking the crossing were of a dark color; the crossing is heavily traveled by automobiles; the defendant 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 signalling 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 box cars to give travelers notice that the crossing was obstructed; there was no guard or warning to apprise the plaintiff and Clements of the crossing; the plaintiff was injured and damaged in enumerated particulars; the defendants' following 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 box cars 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 box cars were obstructing the crossing, in allowing the box cars to remain obstructing the public crossing for an unreasonable length of time, in parking the box cars on a public crossing and allowing them to remain there while the engine was uncoupled from the train, in failing to have some warning placed to afford some notice of the presence of the box cars 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 have installed and maintained at the crossing an automatically controlled electric signalling device to warn travelers on said highway of the presence of trains and locomotives by flashing a red light signal and ringing a bell, in allowing the box cars to remain on the crossing an unreasonable length of time in violation of one of the defendant's own operating rules governing the movement of its trains, number 103-D--to the effect, 'Trains or cars must not stand on public crossings more than a reasonable time without being uncoupled to afford free passage to pedestrians and vehicular traffic'--in failing to have an automatic white gate installed and maintained at said crossing which would give travelers notice that the crossing was blocked, and in failing to uncouple the train and thus leave the crossing open while the defendants were engaged in the switching operation.

The exceptions to the overruling of special demurrers have been abandoned.

Peacock, Perry & Kelley, Jesse W. Walters, Albany, for plaintiff in error.

Burt & Burt, Hilliard Burt, Albany, for defendant in error.

R. W. Reynolds, Albany, amicus curiae.

FELTON, Judge.

1. The court did not err in overruling the general demurrer to the petition. Under repeated rulings of this court, this court cannot say that the sole proximate cause of the collision was the negligence of the driver of the automobile in which the plaintiff was riding, in failing to discover and avoid the consequences of whatever negligence the defendants were guilty of by the exercise of ordinary care, in view of the allegation of impaired visibility at the time of the collision, Georgia Northern R. Co. v. Stains, 88 Ga.App. 6, 75 S.E.2d 833, and cases cited, or that the sole proximate cause was the failure of the driver to exercise ordinary care before the alleged negligence of the defendants was discovered or should have been discovered.

2. The court erred in denying the motion for a new trial on the general grounds because the evidence did not authorize a finding that the defendant was negligent in any particular which contributed to the plaintiff's injuries. The mere act of stopping railroad cars on a crossing for such a length of time as might be reasonably necessary in the conduct of the railroad's business would not constitute negligence on the part of the defendants. Other facts must be shown, to place on a railroad and its employees the duty to give the traveling public warnings of the presence of the train on the crossing, in addition to that which is given by the train itself. Mann v. Central of Georgia Ry. Co., 43 Ga.App. 708, 160 S.E. 131; Gay v. Smith, 51 Ga.App. 615, 181 S.E. 129. In this case the only other fact relied on to impose the additional duty on the part of the defendants was the presence of fog, smoke and extreme darkness in the atmosphere. It is conceded by the defendant in error, and correctly so, that the factor of fog and smoke is necessary to establish liability in this case, and the decisions are clear and numerous on this question. Georgia Northern R. Co. v. Stains, supra, and cases cited. See also Brinson v. Davis, 32 Ga.App. 37, 122 S.E. 643. Georgia law requires headlights on motor vehicles operated on the public streets or highways which will illuminate 500 feet. Code Ann.Supp. § 68-316. In order to establish liability in this case, it was necessary for the plaintiff to prove by competent testimony that the fog and smoke impaired the driver's visibility to such an extent that he did not have clear vision for 500 feet, otherwise the fog or smoke would not have been a material factor. The evidence in this case failed to show to what extent visibility of the driver was impaired, which left the question of liability one of mere conjecture. No witness testified as...