Callaway v. Cox

• Decision Date: 07 November 1946
• Docket Number: No. 31347.,31347.
• Citation: 40 S.E.2d. 578
• Parties: CALLAWAY. v. COX.
• Court: Georgia Court of Appeals

40 S.E.2d. 578

CALLAWAY.

v.COX.

No. 31347.

Court of Appeals of Georgia,

Division No. 2.

Nov. 7, 1946.

Rehearing Denied Dec. 4, 1946.

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Syllabus by the Court.

1. (a) Under the pleadings and evidence it cannot be said as a matter of law that the railroad was not guilty of any of the acts of negligence alleged, or that the deceased was guilty of negligence barring a recovery.

(b) Under the facts of this case the jury was authorized to find from the negative testimony of a witness that the bell of the engine was not rung in preference to accepting the positive testimony of two witnesses to the contrary.

2. The amount of the verdict cannot be said to be excessive as a matter of law.

3. It was not error to overrule the motion for a new trial based on the ground of newly discovered evidence where the affidavits in support of the witnesses upon whose newly discovered evidence a new trial is sought, fails to give the names of the associates of the witnesses.

4. Proof of the ceremonial marriage of the plaintiff to the deceased gave rise to the presumption that the deceased's first and former marriage to another had been dissolved by divorce (the first wife being alive) and the testimony of the former wife was insufficient to overcome the presumption.

5. In view of the ruling in division four the charge of the court that a marriage license was essential to the proof of a ceremonial marriage was harmless to the trustee.

6. The charge complained of in ground eight of the amended motion for a new trial was not erroneous for the reason assigned.

7. It was not error under the pleadings and evidence to fail to charge the law as to the duty of a railroad to give a warning within the corporate limits of cities, towns, and villages, when its trains approach public crossings therein, there being no evidence that the crossing was a public crossing.

8. The assignments of error in grounds eleven and twelve of the amended motion for a new trial are without merit.

Error from Superior Court, Clayton County; James C. Davis, Judge.

Action by Mrs. Freddie Autry Cox against M. P. Callaway, trustee of the Central of Georgia Railway Company, for damages for death of Charles C. Cox, who was struck by a train at a crossing. To review the judgment for plaintiff for $17,-000 with interest at 7% until paid, the defendant brings error.

Affirmed.

Mrs. Freddie Autry Cox sued the trustee of the Central of Georgia Railway Company for damages for the tortious homicide of Charles C. Cox who she alleged was her husband. The petition alleged that the defendant was negligent (a) in failing to anticipate the presence of deceased upon a crossing maintained by the defendant and control the movement of the train striking the deceased so as to avoid injuring him; (b) in failing to give any warning of the approach of the train by bell, whistle or otherwise; (c) in running the train at the great, rapid and reckless rate of sixty miles an hour, having in view the character of the locality which was alleged to be an exceedingly congested community, at a crossing allegedly used by the public at all hours of the day and night; (d) in failing to so regulate the speed of the train upon approaching the crossing so as to do no injury to deceased. The trustee's defenses were that he was not negligent, and that the death was due solely to deceased's ownnegligence in attempting to cross the track in front of the approaching train, and that the plaintiff was not the lawful wife of the deceased. There is no allegation that the crossing was a public one, but merely that the crossing had been in existence for many years, had been maintained and kept in repair by the defendant and used by the traveling public. The jury found for the plaintiff and the defendant excepted to the overruling of his motion for a new trial as amended.

Beck, Goodrich & Beck, of Griffin, and Allen Kemper, of Jonesboro, for plaintiff in error.

O. J. Coogler, of Jonesboro, and John I. Kelley and Howard H. Hamrick, both of Atlanta, for defendant in error.

FELTON, Judge.

1(a) The railroad contends that there was no evidence of its negligence and that the deceased was guilty of negligence which would bar a recovery. Under the pleadings in the case, undemurred to, alleging several acts of negligence, we cannot agree with these contentions. The jury was authorized to find that the private crossing involved was kept up and maintained as a crossing by the railroad for the use of the public. Western & Atlantic R. R. Co. v. Reed, 35 Ga.App. 538, 134 S.E.2d 134; Southern Railway Co. v. Slaton, 41 Ga.App. 759, 154 S.E. 718; Louisville & Nashville Railroad Co. v. Arp, 136 Ga. 489, 71 S.E. 867; Powell v. Smith, 70 Ga. App. 754, 29 S.E.2d 521. The evidence at least authorized a finding by the jury that no signal by bell or otherwise was given upon the approach of the train to the crossing as is shown in division one (b).

The trustee also contends that the deceased was guilty of negligence barring a recovery by going down the highway on a road parallel to the railroad tracks and in turning to the right into the cross road in the path of the oncoming-train for the reason that if he had looked he could have seen the train approaching. It has been held many times that this court cannot say as a matter of law that the failure on the part of a person approaching a railroad crossing, and unaware of the approach of a train, to stop, look, or listen, makes him guilty of a lack of ordinary care, such as would prevent a recovery in an action for ordinary negligence. Collier v. Pollard, 60 Ga.App. 105, 2 S.E.2d 821; Bryson v. Southern Railway Co., 3 Ga.App. 407, 59 S.E. 1124; Williams v. Southern Railway Co., 126 Ga. 710, 55 S.E. 948; Richmond & Danville R. Co. v. Howard, 79 Ga. 44, 3 S.E. 426. It is urged by the railroad that the ruling in Comer v. Shaw, 98 Ga. 543, 25 S.E. 733, controls. With this contention we cannot agree because in the Comer case it affirmatively appears that the person crossing the track did not look for a train until the mule was on the track. In this case it does not appear what the deceased did or did not do as a matter of precaution. In this connection see Southern Railway Co. v. Slaton, 41 Ga.App. 759, 154 S.E. 718.

(b) The trustee of the railroad contends that the testimony of the witness D. S. Shirley, which was negative testimony, was an insufficient basis for the jury's finding that the bell of the engine was not rung, and that the jury was bound to accept the positive testimony of the engineer and fireman that the bell was rung. As to this, the vital point is whether the bell was rung as a warning of the approach of the train to the crossing. Mr. Shirley testified: "I was sitting on my front porch. I live about 150 feet from the railroad. I live in sight of the railroad. I didn't see the collision but I heard it when it struck the car and it hung on the front of the train on the railroad just past my house. * * * I know the crossing he was on. I would say that it is a distance from where I live of about 300 or 350 yards. I was in clear view of the crossing. I could have seen the collision if I had been looking. I didn't hear any signal given on that occasion. I never heard a bell ringing. I was where I could have heard it and I generally hear it. * * * As the train passed there and I saw the automobile, I recognized it as Mr. Cox's automobile. I would say that the train was making a speed of between 55 and 60 miles per hour when it went by there. The train went about one-half mile before it stopped. * * * The firstthing that attracted my attention was the noise from the crash. When I saw it I knew that it was Mr. Cox. I went up to where the train was stopped. The door was knocked off and the car and the man were on the cow-catchers. * * * " The engineer testified: "I did not blow for the crossing. * * * After they removed the body we had to back up to the crossing to get loose from the automobile and roll it back. The bell was ringing at that time. The bell rings by an automatic bell ringer. We turned on the automatic bell ringer coming into Jonesboro. We did not shut it off after that. It is customary to ring the bell all the way from Jonesboro to Atlanta. That is what I did. The bell was ringing as I approached the crossing. When I came to a stop, I shut it off." The fireman testified: "When the engineer approached Morrow that day the bell was ringing by the automatic ringer. The engineer turned it on at Jonesboro that day and the bell was ringing at the time of the collision." Morrow is between Jonesboro and Atlanta. While Mr. Shirley's attention' was not directed to the crossing at the time of the collision, the collision attracted his attention and under the circumstances the jury was authorized to find that his attention was sufficiently directed to the train, dragging the automobile he knew was the deceased's, and that he was in a position to hear the bell ringing, and to find that if the bell was not ringing at the time Mr. Shirley's attention was called to the train it was not ringing as the train approached the crossing, as the engineer and fireman testified it was as shown above. Under the testimony the bell was rung from Jonesboro till the train stopped after the collision or not at all.

2. This court cannot say as a matter of law that the verdict was excessive. The jury was authorized to find that the deceased was approximately 38 years of age, able bodied, and before his death was earning approximately $200 per month and had an expectancy of 28.96 years.

3. It was not error to overrule the motion for new trial based upon the ground of newly discovered evidence where the affidavits in support of the wit nesses upon whose newly discovered evidence a new trial is sought fails to give the names of the associates of the witnesses. Code, § 70-205; Carpenter v. State, 35 Ga.App. 349, 133 S.E. 350; Hart v. State, 36 Ga.App. 673, 137 S.E. 798; Moore v. State, 55...