Central of Georgia Ry. Co. v. Adams

• Decision Date: 10 April 1929
• Docket Number: 19298.
• Citation: 147 S.E. 802,39 Ga.App. 577
• Parties: CENTRAL OF GEORGIA RY. CO. v. ADAMS.
• Court: Georgia Court of Appeals

147 S.E. 802

39 Ga.App. 577

CENTRAL OF GEORGIA RY. CO. v. ADAMS.

No. 19298.

Court of Appeals of Georgia, First Division

April 10, 1929

Syllabus by the Court.

It appearing from the petition that the collision of the automobile with the train was caused solely by the negligence of the plaintiff, the trial judge erred in overruling the general demurrer to the petition.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Aubrey Adams against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Bloodworth J., dissenting.

H Wiley Johnson, of Savannah, for plaintiff in error.

A. L Alexander and F. H. O'Connor, both of Savannah, for defendant in error.

LUKE J.

The only question for determination is whether or not the court erred in overruling the general demurrer to the petition in this action for damages brought by Aubrey Adams against the Central of Georgia Railway Company.

Omitting the formal allegations and those not necessary to a decision upon the question at issue, the petition, in substance, is as follows:

2. The Louisville Road is a main, paved highway extending from the city of Savannah in a westerly direction across Chatham county.

3. About three miles from the city hall of Savannah, two spur tracks, connecting the defendant's main line of railroad with the plant of the Reliance Fertilizer Company, which is located on the south side of said Louisville Road, cross said road; said spur tracks being used for the purpose of transporting freight to and from said plant.

4. Said Louisville Road is one of the main highways of the state and is extensively traveled.

5. "At about 2:30 o'clock on the morning of March 13 1928, petitioner was driving a Buick coupé automobile along said Louisville Road from Savannah toward said spur tracks crossing said road."

6. Petitioner was returning alone to his home at Pooler in said state and county, after having spent the earlier part of the evening with friends in Savannah.

7. "That while on his journey petitioner was driving his automobile with care and caution at a speed not exceeding twenty or twenty-five miles per hour, owing to the fact that the night was intensely dark, foggy and misty, and the weather inclement."

8. "That at about the hour of 2:30 A. M. on said date, while petitioner was proceeding in the careful manner aforesaid, his machine approached said spur-track crossing, and although the headlights on his machine were burning properly, owing to the said inclement weather condition petitioner did not know, and by the exercise of ordinary care could not have known, that he was in close proximity to said crossing, when in front of him at a distance of about twenty feet, petitioner suddenly beheld a train of about eleven freight cars crossing the Louisville Road at said crossing and totally blocking said crossing, the defendant not having provided any means of warning petitioner that he was approaching said crossing."

9. "That immediately upon perceiving said freight cars, petitioner applied the brakes on his automobile and turned to the left, attempting to go down a short road leading to the left; but although said brakes were in good condition, owing to the short distance between said automobile and said freight cars, and the slippery condition of the road, petitioner was unable to stop said automobile in time, and struck the side of one of said freight cars with the right front fender of his automobile, thereby throwing the right side of said automobile into violent contact with the side of said freight car. With such force and violence did said automobile strike said box-car that the fenders and running-board *** were torn off," etc. "When said automobile came to a stop it was at a point about twenty-five feet from the paved road alongside of said tracks."

10. Because of the serious and numerous injuries to his car described in the foregoing paragraph, petitioner's car was damaged in the sum of $820.

11. Petitioner himself was shocked and injured by the collision in specified ways.

12. "Petitioner had no notice whatever that said train of cars was crossing the said road until he was at a distance of about twenty feet from them. There is at said crossing a signboard, which is unlighted, on the western side of the two tracks which constitute the crossing, the said train being on the more eastern track, between petitioner and said signboard, and totally obstructing his view of same. There was no light, bell, watchman, or any other means provided by defendant for apprising petitioner of his approach to said crossing, or that said train was passing over said crossing."

13. "Said spur track is not a part of the main line track of said defendant, and is used only occasionally and at irregular and infrequent intervals for hauling freight to and from the plant of the Reliance Fertilizer Company."

14. "Immediately after the collision, the flagman employed by defendant, whose name is unknown to petitioner, came from behind a gate leading into the yard of said fertilizer plant, which is surrounded by a solid board fence about eight feet in height, and located about thirty-five feet from said Louisville Road, with a lantern, and another member of the crew of said train, whose name is unknown to petitioner, also came up, and carried petitioner to a small building *** located near the main line tracks, a short distance from the scene of the accident. ***" It is further alleged that the employees of defendant took petitioner shortly thereafter to the Central of Georgia Hospital.

15. This paragraph relates to the treatment of petitioner at said hospital.

Paragraphs 16, 17, 18, and 19 relate to injuries and damages.

20. "At the time of said injury, petitioner was in the exercise of all due, ordinary and reasonable care, and was free from fault and negligence."

21. "The collision between petitioner's automobile and said freight train, and the injuries which he sustained thereby, and the damage to his automobile and clothing were due entirely to the negligence of said defendant, as follows, to wit:"

(a) "It failed to have and maintain any light, bell, gong, or sign, or any signal apparatus which would, by the sounding or the sight thereof, warn persons approaching said crossing of the presence of a train, either standing upon or passing over said crossing."

(b) "It failed to have the signboard which was there placed in such a position that any one approaching said crossing from the East could see it in time to slow up or stop for said crossing."

(c) "It failed to provide a red light, or other light, which under the atmospheric conditions then and there existing would penetrate the fog and darkness sufficiently far to give timely warning to persons approaching said crossing."

(d) "It failed to hail, or otherwise warn, petitioner as he approached said crossing, and thus apprise him of the danger confronting him."

(e) "The flagman aforesaid, the servant of defendant, whose duty it was to stand in said road with a lighted lantern and warn persons approaching said crossing, had carelessly and negligently left his post, and was behind the gate leading to the Reliance Fertilizer Company's plant, where neither he nor the lantern could be seen by a person approaching said crossing, which negligence of its servant is imputed and chargeable to defendant."

The demurrer is: (1) The petition does not set out a cause of action. (2) "The allegations of the petition show that the injury and damage for which plaintiff sues were caused solely by the negligence or want of ordinary care on the part of the plaintiff."

In paragraph 19 of the petition, it is alleged that the petitioner "was employed as an accountant by the Savannah Gas Company," and in paragraph 6, that the "petitioner was returning to his home at Pooler, in said State and County, after having spent the earlier part of the evening with friends in Savannah."

Construing the petition most strongly against the pleader, it certainly could not be fairly concluded that the petitioner was entirely unfamiliar with the road he was traversing. Aside from this however, "the night was intensely dark, foggy, and misty," so much so in fact that the petitioner, with the headlights of his automobile "burning properly," could not see a train of cars immediately in front of him at a greater distance than "about twenty feet." Notwithstanding these facts, the petitioner was driving "at a speed not exceeding twenty or twenty-five miles per hour"; the physical facts showing that though he immediately applied good brakes to his automobile and turned to the left, the momentum of the machine was so great that it struck the side of a freight car with great force and was finally stopped 25 feet from the paved road, a complete wreck.

Admitting as true only the allegations of fact in the petition, we cannot escape the conclusion that petitioner was the author of his own misfortunes, and that ...