Carter v. Powell
| Decision Date | 22 February 1938 |
| Docket Number | 26635,26667. |
| Citation | 195 S.E. 466,57 Ga.App. 360 |
| Parties | CARTER v. POWELL et al. POWELL et al. v. CARTER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The petition, a suit by plaintiff against the receiver of the defendant railway company, and its engineer for damages alleged to have been inflicted by reason of the negligent operation of one of its trains at a public railroad crossing which charged, among other things, that the defendants were negligent in failing to give warning of the approach of the train to such crossing and in operating said train at a dangerous and excessive rate of speed, and further charged defendants with negligence, in that, after seeing the plaintiff approaching said crossing and so close thereto as to be unable to bring her car to a stop before reaching same they failed to apply the brakes and stop said train to prevent doing injury to the plaintiff, but instead speeded up its train in an effort to precede plaintiff over said crossing, was not subject to general demurrer.
2. The petition alleged that the plaintiff, upon seeing the approaching train and realizing that she would not be able to get across the tracks before it reached the crossing, jerked her car abruptly to the right; that she got her car off the shoulder of the highway and over a drain ditch adjacent thereto, when it struck an excavation and embankment constructed on the right of way by the defendant for the purpose of diverting the water in the said drain ditch away from its tracks, which caused the rear of her car to be thrown into the back of said train as it was going over said crossing and that "such negligent excavation next to the cross-ties, and the negligent elevation constituting the shoulder to the main water drain so negligently constructed and left open, constituted negligence." Held that the special demurrer directed to the allegations of the petition charging the construction and maintenance of such excavation and embankment as negligence should have been sustained.
3. The allegation contained in the petition "that said engineer failed to otherwise exercise due care in approaching said crossing in order to avoid doing injury to any person or property upon said crossing, and in order to avoid doing injury to petitioner at said crossing as alleged," was subject to the special demurrer that it was a conclusion of the pleader.
4. The special demurrer interposed to the allegations of the petition that the defendant was negligent in allowing certain cross-arm signs erected on its right of way to become obscured by advertising signs erected along the highway should have been sustained.
5. Under the Act of 1918, p. 212, entitled in part, "An act to further regulate the running and operation of railroads in this State, to make additional provision in regard to the equipment thereof," etc., and providing in part as follows: "That * * * each locomotive engine operated on the line of any railway in this State, shall be equipped with * * * a steam signal whistle of at least the power of those with which the engines of the several railroads in this State are equipped at the time of the passage of this act," as now codified in Code, § 94-505, paragraph 8 (c) of the petition as follows: "That said defendants were negligent in failing to have said engine equipped with a whistle of the size and dimension, and making the sound, and giving the force to the blast as required by statute, but the same was a smaller whistle giving out a less sound and blast than required by statute," was not subject to the special demurrer to the effect that the facts stated therein were argumentative, "mere conclusions of the pleader and do not and cannot, even if the surmises therein referred to could be, proven [,] to constitute negligence and should be stricken."
(a) It in fact appears from the evidence in the present case that the train in question was being operated by a gasoline engine. However, it does not so appear from the allegations of the petition and the ruling on the demurrer above set out does not call for a determination of the question of whether the above statute would require that such a train have thereon a "steam signal whistle."
6. Some observations as to questions presented in this court on exceptions to the grant of a first new trial by the trial judge, where judge expressly grants same on the ground that the evidence demanded a contrary verdict.
Error from Superior Court, Sumter County; A. J. McDonald, Judge.
Action by Mrs. J. L. Carter against L. R. Powell, Jr., receiver of the Seaboard Air-Line Railway, and another, for injuries from a collision between a railroad train and plaintiff's automobile. To review a judgment granting defendants a new trial, plaintiff brings error, and defendants, by cross-bill of exceptions, except to the overruling of demurrers to the petition.
Judgment reversed on the cross-bill of exceptions, and main bill dismissed.
J. A. Hixon, Hollis Fort, Sr., and Hollis Fort, Jr., all of Americus, for plaintiff in error.
Dykes & Dykes, of Americus, for defendants in error.
Mrs. J L. Carter brought the present action for damages against L. R. Powell, receiver of the Seaboard Air-Line Railway and J. L. Ross, its employee and engineer, alleging that she was injured by the negligent operation of one of its trains, being operated at such time by said J. L. Ross. The petition alleged that she was driving her automobile south on state route 3, a paved highway, just outside of Americus, Ga., about 2 o'clock in the afternoon of November 17, 1935; that the railroad of the defendant running from east to west crosses said public road on a steep grade as such highway approaches a small creek to the south of the railroad right of way; that embankments 8 to 15 feet high existed on either side of the highway as it approached the railroad crossing and "it was impossible for one to see a train coming from the east going west * * * until arrival immediately at the railroad's right of way and crossing, or to hear the sound thereof by reason of the high hill, the pear and pecan orchards, and woodland on the north, the sound of a train approaching from the east would naturally drift towards the ravine of the branch, and especially would the sound be driven by the embankment immediately on the north of said railroad from said point from towards said highway crossing, and the vision of one was completely obscured from the point on the brow of the hill between said public highway leading down to said crossing going south, and the railroad approaching from the east"; that the said highway at this point was 16 feet wide with shoulders on either side 2 or 3 feet wide and just outside the shoulders and between them and the embankment was a water drain 1 or 2 feet in depth running from the crown of the hill to the railroad crossing and at the railroad right of way a ditch was dug east and west and the water was turned at this point to prevent its running over the tracks; that an embankment had been placed along this ditch by the railroad to deflect this water to the west and that except for this embankment at or near the shoulders of the public highway a car could be safely driven to the west between the railroad cross-ties and the embankment to the north; that the highway going south to this crossing commenced a gradual curve some 200 yards north of the crossing and curved gradually to the crossing, and one traveling in an automobile could not see the crossing until they got within 100 to 125 yards thereof; that there was erected on the north side of the railroad crossing on said highway the stop sign required by law and in the manner required by law, but because of weather and age, the printing thereon was practically obliterated and one not accustomed to them could not read the sign in passing unless they stopped; that the usual cross-arm sign was erected, but because of four or five advertising signs along the highway, it could not be seen by one approaching from the north; that the incline of the highway was steeper just before it reached the railroad crossing; ; that said train consisted, as it afterwards developed, of an engine and one passenger coach, and was ...
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