Central of Georgia Ry. Co. v. Larsen

• Decision Date: 16 February 1917
• Docket Number: 8222.
• Parties: CENTRAL OF GEORGIA RY. CO. v. LARSEN.
• Court: Georgia Court of Appeals

91 S.E. 517

19 Ga.App. 413

CENTRAL OF GEORGIA RY. CO. v. LARSEN.

No. 8222.

Court of Appeals of Georgia, Second Division

February 16, 1917

Syllabus by the Court.

The verdict approved by the trial judge was not without evidence to support it, there was no error in overruling the general demurrer, and the charge of the court correctly stated the rules of law applicable to the issues involved.

Additional Syllabus by Editorial Staff.

The common-law rule that, where the plaintiff's negligence contributed to the injury, he cannot recover, is not the law of the state in respect to homicide by railroad.

Under Civ. Code 1910, § 2781, providing that no person shall recover damages from a railroad for an injury to himself or property, where the same is done by his consent or is caused by his own negligence, the plaintiff, though at fault himself, may recover, unless his negligence was equal to or greater than the negligence of the railroad, though damages are diminished by the jury in proportion to the fault contributable to him; the doctrine being that of "comparative negligence."

The rule of comparative negligence in respect to damages to person or property by railroad, prescribed by Civ. Code 1910 § 2781, is qualified by section 4426, providing that, if plaintiff by ordinary care could have avoided the consequences to himself, he cannot recover; the qualification applying only where the railroad's negligence becomes apparent to the person injured, or where by the exercise of ordinary care he could have become aware of it, and he thereafter failed to exercise ordinary care to avoid the consequences.

Ordinarily the question of negligence, both on the part of a railroad and one injured thereby, is an issue for the jury; but where petition shows on its face that plaintiff cannot recover, and the question is raised by general demurrer, it is the court's duty to sustain the demurrer and dismiss the petition.

Acts 1910, p. 90, regulating the driving of automobiles on public highways, does not supersede the law governing the liability of a railroad for injuries to persons driving automobiles other than to render nonobservance of certain duties therein imposed negligence per se.

Under Acts 1910, p. 90, § 5, providing that no one shall operate a machine on any highway at a speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or operate a machine thereon so as to endanger life or limb, or safety of property, whether one so operates a machine is a question for the jury.

Acts 1910, p. 90, § 5, requiring drivers of automobile approaching a descent, or a railroad crossing, to have it under control and not to operate it at a speed of more than 6 miles per hour, does not require that that speed be maintained while making the descent, as the object is to require him to slow his car to ascertain whether any one not before discerned is using the highway on its descent, so that a descent at more than 6 miles per hour is not negligence per se.

A penal statute requires a strict construction.

In an action under Code 1910, §§ 4424, 4425, for the homicide of plaintiff's husband in a collision at a public crossing, where it is shown by the petition that the decedent drove his automobile down a descent and to within 89 feet of the track at 12 miles per hour, and where it is contended that deceased was thereby shown to be negligent in violating the automobile law (Acts 1910, p. 90, § 5), the negligence of defendant, or at least the degree of his comparative negligence, as prescribed by section 2781 of the Code, together with the question as to what constituted the proximate cause of the injury, and also the question as to whether deceased exercised proper prudence after the danger had been or should have been discovered, were all questions which together should have been properly submitted for the consideration of the jury.

Errors complained of in the matter of overruling special demurrers, not urged by counsel in their briefs, must be treated as abandoned.

In an action, under Civ. Code 1910, §§ 4424, 4425, for the homicide of plaintiff's husband, killed by a collision between his automobile and defendant's train, it was not error to charge conjunctively sections 2781 and 4426, the former prescribing a rule of comparative negligence, and the other stating a particular instance in which recovery could not be had.

Verdict of $15,000 in action under Civ. Code 1910, §§ 4424, 4425, for homicide of plaintiff's husband, 27 years of age, in good health, and earning $2,500 per year, was not excessive.

Error from Superior Court, Johnson County; E. D. Graham, Judge.

Action by Mrs. Rebie Parker Larsen against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Saffold & Jordan, of Swainsboro, for plaintiff in error.

Hines & Jordan, of Atlanta, B. H. Moye, of Wrightsville, and W. W. Larsen, of Dublin, for defendant in error.

JENKINS J.

Mrs. Rebie Parker Larsen brought suit against the Central of Georgia Railway Company, under sections 4424 and 4425 of the Civil Code of 1910, for the homicide of her husband, W. T. Larsen, who was killed by a collision with a passenger train of the defendant at a public crossing while driving an automobile. The plaintiff alleged, in her petition, that the defendant failed to observe any of the requirements of section 2675 of the Civil Code, known as the "blow post law," but that the engineer in charge of the train at the time of the collision ran it over the said crossing at a high and reckless rate of speed, to wit, at the rate of 40 miles per hour; that the servants in charge of the train did not blow the whistle or give any other signal of its approach to the crossing, from the time the blow post was reached until the crossing was passed; and that the engineer in charge of the train did not, on arriving at the blow post, check and continue to check its speed, as required by law, so as to be able to prevent such a collision. The petition alleged that the plaintiff's deceased husband was 27 years of age at the time of his death, and was at that time earning $300 per month in the practice of law, and alleged the full value of his life to be $39,725. The petition further alleged as follows: At the time of his death said W. T. Larsen was traveling in an automobile, going from Dublin, via Scott, Ga., to Swainsboro, Ga., and had to cross the railway of said company at the point where said public road, known as the National Highway, crosses the railway of said company after leaving Scott, Ga. Where said railway crosses said public road is near the foot of a hill. To the right of said public highway, as a traveler approaches said crossing from the west, the hill is of such elevation as to prevent him from seeing a train approaching from the point east of said crossing. Said public road whereon said Larsen was traveling and approaching said crossing from the west is in a cut 3 or 4 feet deep. The embankment of said cut and the elevation of said hill preclude travelers from seeing a train approaching said crossing from the east. Said railway to the east of said crossing is likewise in a cut for some distance; and this fact keeps a traveler, approaching said crossing from the west, from seeing and hearing an approaching train. There is likewise an embankment to the right of said public road as it approaches said crossing, which prevents a traveler approaching the same from seeing and hearing the approach of a train from the east. Said W. T. Larsen was not acquainted with the public road, and with the location of said public road and said railway to each other, not having traveled the same before said date. On approaching said crossing he was prevented from seeing and hearing the approach of said passenger train of said company by reason of the facts hereinbefore stated. Said public road approaches said crossing in a cut with an embankment to its right, as already stated, and on the left there is a ditch, leading from said public road to the said ditch of the roadbed of said railway. This ditch at the point of intersection with the railway is about 90 feet from the crossing. Between said ditch and said crossing there are a stump, a branch, and other obstructions, on the left of said public highway. On the right of said public road and near to said public crossing are a telephone pole and said embankment. These obstructions on both sides of said public road, on the right of way of said railway and within 50 feet of said crossing, prevent a traveler in an automobile, or other vehicle, from turning to the left or the right to prevent a collision with any train of said company, passing over said crossing; and these obstructions prevented the said W. T. Larsen from cutting to one side in order to escape a collision with said west-bound passenger train. Said W. T. Larsen was traveling at a rate of speed not exceeding 12 miles per hour until he got within 89 feet of said crossing, when he discovered said west-bound passenger train rapidly approaching. He immediately applied his brakes to his automobile, and brought it almost to a stop as the train reached said crossing. He furthermore turned his automobile to the right, down the side of the track of said railway, and almost escaped entirely a collision with said passenger train. The engine and tender of said passenger train struck and collided with the left front wheel of said automobile and threw and hurled him from said automobile onto the ground and under said train, whereby he was killed. His left arm and right foot were cut off by the wheels of said train, his body was torn and lacerated, and his skull crushed, from which wounds he shortly died.

The defendant filed a general...