Callaway v. Pickard

• Decision Date: 25 November 1942
• Docket Number: 29711.
• Citation: Callaway v. Pickard, 68 Ga.App. 637, 23 S.E.2d 564 (Ga. App. 1942)
• Parties: CALLAWAY v. PICKARD.
• Court: Georgia Court of Appeals

23 S.E.2d 564

68 Ga.App. 637

CALLAWAY v. PICKARD.

No. 29711.

Court of Appeals of Georgia, Division No. 2.

November 25, 1942

Rehearing Denied Dec. 18, 1942.

Syllabus by the Court.[Copyrighted Material Omitted][Copyrighted Material Omitted]

Horace V. Pickard brought suit against H. D. Pollard and A. B Lovett as trustees of the Central of Georgia Railway Company appointed by order of the United States district court for the southern district of Georgia, to recover damages, which the plaintiff alleged were the result of personal injuries sustained by him on account of the negligence of the defendants.

The petition alleged in substance that on January 17, 1941, about 10 a. m.the plaintiff was traveling in a motor truck along Gibson Street approaching the tracks of the railway company; that there are four sets of tracks of the company at the Gibson Street crossing, almost parallel to each other, and running north and south; that as the plaintiff approached the crossing, traveling easterly, his view to the north was obstructed by the old depot of the Central of Georgia and by stacks of lumber on the railway property, both of which were within a few feet of the first track; that after the plaintiff had crossed the first track, which was a switch track, and had entered on the next track, which was the main line, his truck was struck on the left side by a southbound passenger train of the company, which train was traveling at the negligent and reckless speed of thirty to thirty-five miles an hour; that the plaintiff was thereby knocked violently from the truck and was seriously and permanently injured, that before entering and proceeding over the crossing the plaintiff brought his truck almost to a stop, that no signal was given by bell, whistle, or otherwise, before the train entered upon this crossing; that the defendants were negligent in that this train was traveling, as it approached and entered on the crossing, at a speed of about thirty-five miles an hour, in violation of the requirements of ordinary care, that the defendants were also negligent in that the engineer and fireman in charge of this train failed to keep a constant and vigilant lookout ahead as the train approached the crossing, as required by law and by ordinary care, that the defendants were negligent in that no bell was rung as the train approached the crossing, as required by law, which failure constituted negligence as a matter of law; that the defendants were also negligent in that no whistle was blown as the train approached the crossing, as was required under the circumstances in the exercise of ordinary care; that this crossing is in a thickly-settled residential and industrial section of the town of Cedartown, and the defendants were negligent in not maintaining at the crossing a watchman or some signal device so as to warn persons of the approach of trains; that there are many houses in the vicinity of the crossing on both sides of the street and on both sides of the highway; that Cedartown is an incorporated town with a population of several thousand, and the crossing is in a thickly-settled section near the center of such town, and people cross this crossing in each direction constantly; that the traffic across the crossing is heavy; that the defendants were negligent in that the engineer and fireman in charge of the train, knowing of these conditions and knowing of the absence of a watchman or signal device at the crossing, failed to stop or slow the train sufficiently to have a member of the train crew go in advance thereof and flag the crossing before the train moved over it; that the defendants were also negligent in that no member of the train crew flagged the crossing before the train entered on it; and that all of the negligent acts and omissions contributed to and proximately caused the plaintiff's injuries.

The petition further alleged: "Plaintiff was injured as follows: The 10th, 11th and 12th ribs on his right side were broken.His spine was injured, being twisted about the dorsal and lumbar region and the muscles and ligaments in those regions being sprained and torn.His back about the kidney region was severely bruised, the flesh, skin, and muscles being torn, and the internal organs, including the kidneys being badly bruised and lacerated, causing the passage of blood through the urinary passages.These injuries caused a dislocation of plaintiff's right kidney.Plaintiff's entire nervous system was shocked and he suffered a partial paralysis of his right leg.He received a severe cut on his right side about three inches long, and a severe cut over the right shoulder blade about five inches in length.He suffered severe bruises and abrasions over the left shoulder blade.There were severe cuts, bruises, and abrasions over the entire back and shoulders.His right testicle was bruised, mashed and otherwise severely injured, causing it to become greatly enlarged.The injuries to his shoulders have caused a partial loss of the use of his right arm.Plaintiff was fifty-four years of age at the time he received his injuries, and prior to that time had been in good health and good physical condition.He had an expectancy in life of 18.28 years.He was earning $110 per month as a meter reader for the City of Cedartown.On account of said injuries he was confined to the hospital from January 17, 1941, to January 27, 1941, and was confined to his bed at home after that time until March 22, 1941.

He has not been able to perform his regular duties as meter reader since said time, but has been partially incapacitated and will be partially incapacitated permanently and will continue to suffer pain permanently.He has been forced to incur nurses', doctors', and medical bills amounting to $300, and will be forced to incur an additional amount of approximately that sum, making at least a total of $600 for medical, doctors' and hospital bills."

The defendants demurred to the petition on the ground that the averments were insufficient and failed to show any cause of action.They also specially demurred to various paragraphs of the petition which it is not necessary to specifically set forth.They filed their answer in which they admitted that the plaintiff had been struck by a train at the Gibson Street crossing and received some injury, and admitted that there was an old depot and a stack of lumber along the east side of the railway tracks and to the north of the crossing, but they denied liability.They further alleged that any injury which had been received by the plaintiff resulted from his own negligence in driving the automobile truck on the railroad crossing, which is a known place of danger, without having such truck under proper control so that he could stop it in the event that a train was using the crossing; that the plaintiff was negligent in driving on the crossing at a fast and reckless speed without looking in either direction to see if a train was approaching the crossing; and the defendants also alleged that the plaintiff did not exercise any care whatever in approaching and using this railroad crossing.The judge overruled the demurrers, general and special and the defendant filed exceptions pendente lite.

On February 14, 1942, on motion of the plaintiff, by consent of counsel for the defendants, it having been made to appear that H. D. Pollard had died, that A. B. Lovett had resigned as trustee, and that M. P. Callaway had been made trustee of such railway company in lieu of the former trustees, the court ordered that Callaway, as such trustee, be made defendant in the case in lieu of the trustees originally named.

The trial resulted in a verdict in favor of the plaintiff for $17,500.The defendant moved for a new trial on the general grounds and on several special grounds.In special ground 1 error is assigned on the verdict as being excessive.In grounds 2 to 6 inclusive the defendant assigns error on certain excerpts from the charge to the jury, dealing with the allegations of negligence that the defendant failed to blow the whistle, failed to have a watchman at the crossing, and failed to slow the train sufficiently to have some one flag the crossing; dealing with damages, with the items of damages, with impairment of earning capacity, and dealing with evidence relative to the plaintiff's expectancy in life.In ground 7 error is assigned because the court overruled the defendant's objections to the admission in evidence of a rule governing the operators of trains of the company which provided that "in order to avoid grade-crossing accidents with automobiles in future, when automobiles are seen approaching a crossing, and there is any doubt as to whether or not the driver will stop, you will sound the cattle alarm signal with the steam whistle as a means of warning the driver of the impending danger."The judge overruled the motion for new trial and the defendant excepted.Error is also assigned on the exceptions pendente lite, in which the defendant excepted to the overruling of the demurrers.

Matthews, Owens & Maddox, of Rome, and Henry Stewart, of Cedartown, for plaintiff in error.

Arnold, Gambrell & Arnold, of Atlanta, and J. B. Edwards, of Cedartown, for defendant in error.

STEPHENS, Presiding Judge(after stating the foregoing facts).

1.While, in passing on the general demurrer, the petition is to be construed most strongly against the plaintiff, and while in such a case, if an inference unfavorable to the right of the plaintiff may be fairly drawn from the facts stated in the petition, such inference will prevail in determining the rights of the plaintiff and the defendant, and while no person can recover damages from a railroad company for injuries to himself where such injuries result from his own...