Central of Georgia Ry. Co. v. Motz
| Decision Date | 27 March 1908 |
| Citation | 61 S.E. 1,130 Ga. 414 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. MOTZ. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A petition by a father to recover damages for the death of his child alleged as follows: Plaintiff's son, nine years of age, with two other boys, went to a public road crossing over the tracks of a railway in an unincorporated town. His companions were expecting some freight, consigned to their parents, to arrive on a local freight train, and the plaintiff's son intended to assist them in moving it upon its delivery. The local freight train was standing on the main line of the railroad, and freight was being unloaded over " skids" extending out from the cars across the side track, which lay between the main line and the station building, to the platform. While this was in progress, the public road crossing was obstructed by the standing cars, and the plaintiff's son and his companions stood on the crossing between the side track and the main line, a short distance from the station and in plain view of the employés who were unloading the freight. A through freight train, going in the opposite direction from the local train, approached, and, in order that it might pass on the side track, the switches were placed to effect that result. It entered the side track at a speed of about 20 miles an hour without blowing the whistle, or ringing the bell, or checking its speed, and thus proceeded along the side track toward the crossing. The plaintiff's son and his companions neither saw nor heard the approaching train because the local train was just then put in motion, thus engrossing their attention; and the noise made by the local train prevented them from hearing the other train until it was upon them, and they were caught in the narrow space between the two tracks along which the moving trains were passing. Frightened and terror stricken, they endeavored to escape from their perilous position by running along the ground between the two trains until they could outdistance the engine of the local train and pass over the track in front of it. While thus endeavoring to escape the plaintiff's son was struck by the through freight train causing his death. The boy was in the exercise of all due and reasonable care, and his death resulted from the gross carelessness and negligence of the defendant. Held, that the petition was not subject to general demurrer.
Where at the appearance term of the case, a general and a special demurrer were filed, the latter was not amendable at a later term by adding thereto new and independent grounds of demurrer.
[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 816-818.]
Error from Superior Court, Chatham County; Geo. T. Cann, Judge.
Action by Anton Motz against the Central of Georgia Railway Company. There was a judgment overruling a demurrer to the petition, and defendant brings error. Affirmed.
Lawton & Cunningham and H. W. Johnson, for plaintiff in error.
Twiggs & Oliver and Gazan & Oliver, for defendant in error.
Anton Motz sued the Central of Georgia Railway Company to recover damages for the homicide of his son, nine years of age. A demurrer to the petition was overruled, and the defendant excepted.
It was argued that the son of the plaintiff was not a traveler or person proceeding to cross the track on the public road, but that he had gone to the place where he was injured, with his companions, to assist in removing some freight after it should be unloaded, and that, if he had any right to be there or any duty to perform, it was to be at the station or on the platform. A public highway is primarily for public passage; but we cannot say that, if one temporarily stops on it, he has no right to complain if it is obstructed, nor that an obstruction of a public road where it crosses railroad tracks may not, in connection with other facts, constitute negligence as to one who is standing upon the crossing, if he is thereby put in peril from another train of the same company, run at a high rate of speed, and without giving signals, on a track near to and parallel with that on which the obstructing train stands. Certainly the situation of the obstructing train, if not in itself an independent act of negligence, would constitute a part of the surroundings to be considered in connection with the method of operating the other train which directly caused the injury. The mere addition of the words "as required by law" to the statement that the local freight train did not clear the public crossing, neither added to nor detracted from the allegation of facts.
It is further contended that as the boy was not standing upon the track, but between the tracks, there was no negligence on the part of the employés in charge of the local freight train in not warning him of the approach of the through freight train before putting the former train in motion. It was alleged in the petition that the space between the tracks was narrow, and that the boy was in a perilous position between the two trains, and, also, that the noise of the starting of the local freight train just before the through train arrived prevented him and his comrades from hearing the latter train. If the boys were known to be in a position which would become perilous by the passing of the two trains, and the agents in charge of the one which had been standing at the station knew of their position and of the approach of the other train, and the employés on neither train gave them any warning, although the noise of the starting train was calculated to prevent them from hearing the other one, the jury might think that there was negligence; and we cannot say as matter of law that there was none.
It was contended, also, that the statute touching giving signals and checking speed at public road crossings was not applicable because the son of the plaintiff was standing between the two tracks when the through freight train approached, and was not passing over the tracks, and that the point where he was killed was not on the crossing, but a short distance therefrom, where he had run in an effort to leave the narrow space between the tracks and cross ahead of the train which had just started. While the primary purpose of the law in regard to erecting blow posts, blowing the whistle, and checking the train in approaching public crossings is for the protection of persons or things which may be using the crossing for passage, and the engineer is required to check and keep checking the locomotive "so as to stop in time should any person or thing be crossing said track on said road" (Civ. Code 1895, § 2222), we cannot say that, if a person is lawfully standing upon a...
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