Atlantic Coast Line R. Co. v. Green

• Decision Date: 04 October 1951
• Docket Number: No. 33703,No. 1,33703,1
• Citation: 84 Ga.App. 674,67 S.E.2d 184
• Parties: ATLANTIC COAST LINE R. CO. v. GREEN
• Court: Georgia Court of Appeals

Page 184

67 S.E.2d 184

84 Ga.App. 674

ATLANTIC COAST LINE R. CO. v. GREEN.

No. 33703.

Court of Appeals of Georgia, Division No. 1.

Oct. 4, 1951.

Syllabus by the Court.

The court erred in overruling the motion for a new trial for the reasons stated in divisions 1 and 5 of the opinion.

Randolph Green sued Atlantic Coast Line Railroad Company for injuries allegedly due to the negligence of defendant. The amended petition alleged substantially: that the road known as Lovers' Lane is one of the public roads of Richmond County, Georgia, and intersects and runs across a line of defendant at what is commonly known as the Lovers' Lane Public Road Crossing, said crossing being located approximately one mile East of the point where said railroad crosses the Eastern boundary of the corporate limits of the City of Augusta; that there is located a sidetrack which leaves the main line immediately East of said public crossing and runs in an Easternly and Westernly direction, as does the main line, and on the immediate South of said main line; that at the time of the injuries hereinafter complained of, a string of approximately fifty box cars, the exact number being unknown to petitioner, were standing upon said sidetrack at a point near where said sidetrack leaves the main line in a position obstructing the view of the engineer operating the train in a Westernly direction where said main line approaches said crossing, so that traffic approaching said crossing from the South and travelling in a Northernly direction along said Lovers' Lane could not be seen by said engineer until within a few feet of said crossing; that at about 11:50 a. m., on March 30, 1950, the freight train being operated by said defendant approached said crossing over the said main line from an Easternly direction, travelling at a rate of speed of approximately fifty to sixty miles per hour, and the speed of said train was not reduced at the time of the injuries hereinafter alleged; that said freight train consisted of a diesel locomotive and train of cars and was in the control of and being operated by its engineer, an agent, servant and employee of defendant; that said engineer has been in the employment of defendant as an engineer for a long number of years and for such length of time has been operating trains over said railroad tracks so that he was familiar with the aforesaid crossing, sidetracks, Lovers' Lane Public Road and of the general physical surroundings of said crossing; that in approaching said crossing as aforesaid, no whistle, bell, gong or other signal device was sounded and no such warning of any kind or character of the approach of said crossing by said train was given; that said train approached the crossing as aforesaid and in traversing it ran into the right front side of the automobile in which petitioner was driving across said crossing from a Southernly direction, demolishing said automobile and inflicting certain described serious and painful permanent injuries upon plaintiff; that at the time of the injuries to petitioner, the said train was being operated in violation of the laws of this State and particularly Section 94-506 of the Code of Georgia of 1933, as amended, said violations being those alleged in paragraph eight of the petition, and which was negligence per se and the direct and proximate cause of said injuries to petitioner; that said train was being operated in a negligent manner in that the speed of fifty to sixty miles per hour was in excess of what was reasonable and proper, having due regard for the physical surrounding of said crossing and the approaches thereto as hereinbefore alleged, which act of negligence was the direct and proximate cause of said injuries; that the physical surroundings creating said negligence that constitutes the direct and proximate cause of said injuries are those set out in this paragraph and paragraphs Four, Eight and Thirteen of the petition; that said engineer in approaching and traversing said crossing as aforesaid did not keep a constant and vigilant lookout along the track ahead of his engine, but, if he had been keeping and maintaining such a lookout, he could have seen said string of box cars obstructing his view as aforesaid and have reduced the speed of his train, and if he had been keeping and maintaining such a lookout, he could have observed the danger to northbound traffic approaching said crossing, and if he had blown his whistle or rung his bell, or in some way made known the approach of said train to said crossing petitioner would have known of the approach of said train and would not have gone on said crossing, and would not have been injured; that for said reasons the defendant was guilty of negligence; that defendant was guilty of negligence per se and was negligent as a matter of law in that its aforesaid employee failed to blow a whistle or otherwise give a timely warning of the approach of said train to said crossing as required by law, which if he had given such timely warning of the approach of said train to the crossing, petitioner would have heard same and would have been warned of said approach; that said engineer failed to use due care in controlling the movements of his train so as to avoid doing injury to petitioner in the way and manner aforesaid and such failure was negligence; if he had controlled his train as required with due care, petitioner would not have been injured; that plaintiff was at all times in the exercise of ordinary care and diligence and at the time plaintiff did everything in his power to avoid being injured as a result of defendant's negligence, but that it was impossible to avoid same. The jury returned a verdict for the plaintiff and defendant filed his amended motion for a new trial on the general and some special grounds. The court overruled the amended motion for a new trail and defendant excepted.

Joseph B. Cumming, Augusta, for plaintiff in error.

C. Wesley Killebrew, Augusta, for defendant in error.

FELTON, Judge.

1. In the trial of an action wherein the plaintiff sought recovery of damages for injuries alleged to be due to the negligence of a railroad company at a public crossing, where the evidence would have authorized a finding that the plaintiff could have avoided the alleged negligence of the railroad company by the exercise of ordinary care, it was error for the court to refuse to give in charge on request: 'I charge you that if the plaintiff, by the exercise of ordinary care, could have avoided the consequences to himself caused by defendant's negligence, he is not entitled to recover', where in the general charge the nearest approach to the principle requested was in the charge to the effect that there was a duty upon the plaintiff to exercise ordinary care to avoid injury to himself from dangers he knew to exist and that plaintiff was further bound to use ordinary care to discover the approaching danger. Code, §§ 105-603,...