Brinkman v. Atl. Coast Line R. Co, 23209.

• Decision Date: 15 December 1933
• Docket Number: No. 23209.,23209.
• Citation: 172 S.E. 113,48 Ga.App. 121
• Parties: BRINKMAN. v. ATLANTIC COAST LINE R. CO.
• Court: Georgia Court of Appeals

48 Ga.App. 121

172 S.E. 113

172 S.E. 113

BRINKMAN.

v.ATLANTIC COAST LINE R. CO.

No. 23209.

Court of Appeals of Georgia, Division No. 1.

Dec. 15, 1933.

Syllabus by the Court.

The court erred in giving in charge the section of the act of 1921 (Ga. L. 1921, p. 256), with reference to the speed of automobiles at railroad crossings, this act being repealed by the act of 1927 (Ga. L. 1927, pp. 236, 237).

Error from City Court of Thomasville; Roscoe Luke, Judge.

Suit by R. L. Brinkman against the Atlantic Coast Line Railroad Company. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Reversed.

P. C. Andrews, of Thomasville, and S. I'. Cain, of Cairo, for plaintiff in error.

H. H. Merry, of Thomasville, and Bennet & Branch, of Quitman, for defendant in error.

GUERRY, Judge.

This is an action for damages against a railroad company, the alleged damages having been suffered by reason of a collision between an automobile of the plaintiff and a train of the defendant at a crossing within a municipality. The verdict was in favor of the railroad company. The plaintiff's motion for a new trial was overruled, and he excepted. He assigns as error the charge of the court that it was negligence per se for the plaintiff to drive his automobile approaching the crossing at a rate of speed in excess of ten miles per hour, and that if the plaintiff's own negligence was the efficient and proximate cause of the injury, he would not be entitled to recover. The act of 1921 (Ga. L. 1921, p. 256), section 2, provides that: "Upon approaching any intersecting highway, bridge, railroad crossing, * * * or in traversing such intersecting highway, bridge, railroad crossing, * * * the operator of a motor vehicle * * * shall at all times have said vehicle under immediate control, and shall not operate said vehicle at a greater speed thanlent miles per hour." The act of 1927 (Ga. L. 1927, pp. 236, 238), section 12, subsection i, provides that: "An operator shall reduce speed at crossing or intersection of highways, on bridges, or sharp curves and steep descents, and when passing any animal being led on the highway." Section 29, of the same act provides that: "All laws and parts of laws in conflict with this Act be and the same are hereby repealed." In Seaboard Air-Line R. Co. v. Benton, 43 Ga. App. 495, 502, 159 S. E. 717, 721, it was said: "The act of 1927 would seem necessarily to supersede both the act of 1910 and the act of.1921, * * * while * * * the act of 1927 * * * does not specifically regulate the speed of motor vehicles on approaching a railroad crossing, the intention of the Legislature that the act of 1927, when taken in connection with the act of 1925, should cover the whole subject-matter of the operation of motor vehicles on public highways, is manifest. * * * It would therefore seem that the entire legislation embodied in the acts of 1910 and 1921 governing the operation of automobiles on public highways was covered and superseded by the acts of 1925 and 1927, except as to railroad crossings in municipalities, which might be and were intended to be regulated by municipal ordinance."

Counsel for the defendant insist that the statement in the Benton Case, supra, "which might he and were intended to be regulated by municipal ordinance, " is obiter, and, while conceding that under the decisions in the cases of Sapp v. Elrod, 41 Ga. App. 356, 153 S. E. 73, Central of Ga. Ry. Co. v. Keating, 45 Ga. App. 811, 165 S. E. 873, and the Benton Case, supra, the act of 1927 does supersede the acts of 1910, pp. 90, 92, and 1921, pp. 255, 256, so far as it applies to railroad crossings without the limits of a municipality, insist that it did not repeal it in so far as it applied to railroad crossings in municipalities, because the act of 1927 nowhere seeks to regulate the operation of automobiles in approaching or traversing a railroad crossing inside a municipality and the repealing clause cannot be said to have any effect upon the provisions of the act of 1921 covering the operation of motor vehicles in approaching or traversing railroad crossings in municipalities. With this contention we cannot agree. The act of 1927 evidently...