Atlantic Coast Line R. Co. v. Spearman

• Citation: 156 S.E. 824,42 Ga.App. 536
• Decision Date: 19 January 1931
• Docket Number: 20474,20475.
• Parties: ATLANTIC COAST LINE R. CO. v. SPEARMAN. SPEARMAN v. ATLANTIC COAST LINE R. CO.
• Court: United States Court of Appeals (Georgia)

156 S.E. 824

42 Ga.App. 536

ATLANTIC COAST LINE R. CO. v. SPEARMAN.

SPEARMAN v. ATLANTIC COAST LINE R. CO.

Nos. 20474, 20475.

Court of Appeals of Georgia, Second Division

January 19, 1931

Syllabus by the Court.

Act creating highway department and public roads did not supersede or repeal statutes relating to railroad's duty to maintain public crossings; "public crossing" includes reasonable approaches necessary for traveler to cross safely (Civ. Code 1910, § § 2673, 2674; Laws 1919, p 247, art. 4, § 1, and art. 5, § 1).

Sections 2673 and 2674 of the Civil Code of 1910, relating to the duty of railroad companies to maintain public crossings in a proper condition for travel and defining the extent of such crossings, were not superseded or repealed by the act creating the state highway department and establishing a state system of public roads.

(a) By the express provisions of section 2674, a public crossing necessarily includes such reasonable approaches as are "necessary for a traveler to get on and off the crossing safely and conveniently."

Charge on statute requiring railroad to perform various duties was not reversible error, though part of section was inapplicable, where railroad was not prejudiced thereby (Laws 1918, p. 12, § 2).

While the petition did not allege any negligence on the part of the defendant railway company in failing to blow the whistle as the train approached the crossing, it did allege that the defendant was negligent in that the engineer and fireman failed to keep a proper lookout ahead of the engine, and otherwise to exercise due care in approaching the crossing as required by the act of August 19, 1918 (Ga. Laws 1918, p 212), and since section 2 of the act contains provisions both as to the blowing of the whistle and as to the performance of the other duties named, the court did not commit reversible error in giving in charge to the jury this entire section although a part of the section was inapplicable; it being apparent that the defendant was not prejudiced thereby.

Instruction that allegations of petition alleging violation by railroad of specific duties imposed by statute amounted to charge of negligence per se was proper.

The court did not err in instructing the jury that certain allegations of the petition amounted to a charge of negligence per se, since in the part of the petition thus referred to the plaintiff alleged a violation of certain specific duties imposed upon the defendant by statute. Such instruction was authorized both by the pleadings and the evidence.

Where defendant denied negligence and cross-complained for damages and jury awarded plaintiff full amount sued for, failure to charge on forms of verdict in case of general finding without damages was not error.

The plaintiff sued for the full value of his automobile, which was alleged to have been destroyed as a result of negligence on the part of the defendant. The defendant denied that it was guilty of any negligence whatever, and alleged that the plaintiff's loss was the result of his own negligence and that in addition to this the plaintiff was liable to the defendant for certain damage sustained by the defendant as a result of the collision between the automobile and the defendant's engine. The jury found a verdict in favor of the plaintiff for the full amount sued for. In view of these facts and others which appear in the record, the defendant was not harmed by the failure of the court to instruct the jury specifically as to the form of their verdict in case they should make a general finding in favor of the defendant, without awarding damages to either party.

Charge on effect of party's failing to produce evidence within his power, not requested, held not error (Civ. Code 1910, § 5749).

In the absence of a timely written request, the court did not err in failing to give in charge the provisions of section 5749 of the Civil Code.

Recall of jury after dispersion to specify count on which verdict was based was not erroneous, where counts were identical.

The two counts of the petition were in effect identical. It was therefore not error requiring a new trial that, after the jury had returned a verdict in favor of the plaintiff, without specifying the count upon which it was based and had then dispersed, the court, over objection of counsel for the defendant, caused the jury to reassemble and then instructed them to retire and, upon further consideration of the case for that purpose, to specify the count upon which the verdict was based, and that the jury complied with these instructions and amended the verdict so as to show that it was based upon the second count.

The evidence authorized the verdict, and there was no error in refusing a new trial.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by J. C. Spearman against the Atlantic Coast Line Railroad Company, in which defendant filed a cross-action. Judgment for plaintiff, defendant's motion for new trial was overruled, defendant brings error, and plaintiff files cross-bill of exceptions.

Affirmed on main bill of exceptions. Cross-bill dismissed.

Lawrence & Abrahams, of Savannah, for plaintiff in error.

Bouhan & Atkinson, of Savannah, for defendant in error.

BELL, J. (after stating the foregoing facts).

1. Section 2673 of the Civil Code of 1910 provides as follows: "All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws." Section 2674 then defines the extent of such crossings in the following language: "Such crossings include the width of land on both sides of the road allowed by charter or appropriated by the company therefor, and for as many feet beyond, each way, as is necessary for a traveler to get on and off the crossing safely and conveniently." In one of the grounds of the motion for a new trial error is assigned upon a portion of the charge of the court which undertook to construe the provisions of section 2674 as just quoted; the language of the excerpt complained of being as follows: "It is contended by the plaintiff in this case that that applies to making the crossing as it goes over the railroad so much wider than the actual road established by the highway department as may be necessary to make it a safe crossing. I do not agree to that construction of the law. My construction of that language is, that the obligation is upon the railroad, at such a crossing, to preserve and make proper and safe that crossing to the extent of its right of way, or so much further as may be necessary to make it a proper crossing, as to approaches, as well as to actual crossing of the tracks of the railroad company."

This charge was excepted to upon various grounds, raising, as contended by counsel for the plaintiff in error, the following questions: (1) Whether sections 2673 and 2674 of the Civil Code have been superseded or repealed by the act of 1919 creating the state highway department and a system of state roads; (2) whether it was error for the court to instruct the jury that it was incumbent upon the defendant to keep the crossing in good order as to approaches thereto along the highway, that is, beyond that portion of the highway actually occupied by the railroad tracks; (3) whether the instructions as to the duty of the railroad company to preserve and maintain the crossing was so vague and indefinite as to constitute reversible error.

There is no merit in the contention that sections 2673 and 2674 were superseded or repealed by the act creating the state highway department and establishing a system of state roads. See Ga. Laws 1919, p. 242 (Michie's Code of 1926, § 828 (1) et seq.). Section 1 of article 4 of this act provides that: "There is hereby created a system of State-Aid Roads in this State for the purpose of interconnecting the several county seats of the State, which shall be designated, constructed, improved, and maintained by the State under the State Highway Department, and the provisions of law; and that the term State-Aid Roads shall include the State or interstate bridges and other subsidiary structures necessary or desirable in the construction of said roads." And in section 1, article 5, it is declared that the state highway department shall "have charge and control of all road or highway work designated or provided for, or done by the State or upon the State-Aid Roads; to designate, improve, supervise, construct and maintain a system of State-Aid Roads, provided that no road shall become a part of said system until the same shall be so designated by the State Highway Board by written notice to the county road authorities concerned." It is upon these provisions that the railroad company predicates its contention as to the repeal of sections 2673 and 2674.

Repeals by implication are not favored, and we have no hesitancy in holding that it was not the purpose of any provision of law relating to the state highway department to relieve the railroad companies of the duty imposed by sections 2673 and 2674 of the Civil Code. The control of the public roads brought into the state system was merely transferred from the counties to the state, and the duty as to constructing and maintaining proper railroad crossings was not lifted from these companies and placed upon the highway department, but remained as before as a statutory obligation of the railroad companies.

We cannot sustain the contention of the railroad company that its duty as to maintaining the crossing extended only to the ground actually occupied by the highway and crossed by the tracks, and did not include any...