Buffington v. Atlanta, Birmingham & Coast R. Co.

• Decision Date: 29 May 1933
• Docket Number: 22661.
• Citation: 169 S.E. 756,47 Ga.App. 85
• Parties: BUFFINGTON v. ATLANTA, BIRMINGHAM & COAST R. CO.
• Court: Georgia Court of Appeals

169 S.E. 756

47 Ga.App. 85

BUFFINGTON v. ATLANTA, BIRMINGHAM & COAST R. CO.

No. 22661.

Court of Appeals of Georgia, Second Division

May 29, 1933

Syllabus by Editorial Staff.

Count of petition for pedestrian's death at railroad crossing setting up railroad's lack of ordinary care held not demurrable as showing death was caused by deceased's lack of ordinary care.

Count alleged that the homicide occurred at about midnight at a public crossing; that the air was impregnated with fog and smoke obscuring vision of deceased; that an electric light was shedding light directly on and beyond the crossing; and that consequently it was impossible for the deceased to know that any train was approaching as he walked on crossing when, without warning or notice, he was struck by the train. Count then alleged negligence of defendant's engineer and agents in operating train at negligent speed, in failing to ring the bell on approaching the crossing, in failing to maintain constant and vigilant lookout, and in failing to exercise due care in operating and controlling the train.

Words "negligence" and "willfulness" are incompatible, and, absent statutory authorization, plaintiff cannot in single count allege both simple negligence and willful misconduct.

In suit for pedestrian's death at railroad crossing, count combining charges of ordinary negligence and willful and wanton misconduct held demurrable as being duplicitous and confusing, although containing further general allegation that engineer's conduct prior to his discovery of deceased was "gross negligence."

General allegation that engineer's conduct prior to his discovery of deceased was "gross negligence" could not be taken to show that sole intent of pleader was to charge "willful and wanton misconduct," since "willful and wanton misconduct" and "gross negligence" are not synonymous.

Error from Superior Court, Meriwether County; L. B. Wyatt, Judge.

Suit by Avis Buffington against the Atlanta, Birmingham & Coast Railroad Company. To review the judgment, plaintiff brings error.

Affirmed in part and reversed in part.

N. F Culpepper, of Greenville, for plaintiff in error.

Atkinson & Allen, of Greenville, and Lovejoy & Mayer, of La Grange, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

1. Under the rules stated in Southern R. Co. v. Slaton, 41 Ga.App. 759, 760 (3, 4), 154 S.E. 718, Id., 45 Ga.App 781, 782, 165 S.E. 883, Clements v. Central of Ga. R. Co., 41 Ga.App. 310, 152 S.E. 849, Central of Ga. R. Co. v. Betsill, 44 Ga.App. 219, 160 S.E. 663, and similar cases, the first count of the petition, setting up a lack of ordinary care on the defendant's part, was not subject to general demurrer, as showing a plain, palpable, and indisputable injury caused by lack of ordinary care on the part of the deceased. The cases of Cox v. Central of Ga. R. Co., 38 Ga.App. 88, 143 S.E. 444, Id., 167 Ga. 416, 145 S.E. 875, Peeples v. Louisville & Nashville R. Co., 37 Ga.App. 87, 139 S.E. 85, if in any way conflicting with the first-named case, are distinguishable from the instant case, in that the negligence of the person injured and the absence of the negligence of the railroad company do not here appear on the face of the petition; especially in view of the allegations that the homicide occurred on a public crossing at midnight, when the air was impregnated with fog and smoke, with an electric light shedding its rays about and beyond the...