Coleman v. Western & A. R. Co

• Decision Date: 29 January 1934
• Docket Number: No. 23103.,23103.
• Citation: 172 S.E. 577,48 Ga.App. 343
• Court: Georgia Court of Appeals
• Parties: COLEMAN. v. WESTERN & A. R. CO.

48 Ga.App. 343

172 S.E. 577

COLEMAN.

v.WESTERN & A. R. CO.

No. 23103.

Court of Appeals of Georgia, Division No. 2.

Jan. 29, 1934.

Nov. 4, 1933.

Rehearing Denied

Syllabus by Editorial Staff.

STEPHENS, J., dissenting.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by R. C. Coleman against the Western & Atlantic Railroad Company. To review a judgment sustaining a demurrer to his petition, plaintiff brings error.

Affirmed.

Eugene L. Tiller and Branch & Howard, all of Atlanta, for plaintiff in error.

Tye, Thomson & Tye, of Atlanta, for defendant in error.

[172 S.E. 678]

Syllabus Opinion by the Court

SUTTON, Judge.

This was a suit for damages against the railroad company, in which the plaintiff made this case: He was walking along Simpson street, in the city of Atlanta, going in the direction of the tracks of the defendant which cross Simpson street, just west of the point where Marietta street and Simpson street intersect. This crossing is a public crossing, and there are twelve or more tracks running parallel at this point. On the south side of Simpson street and adjacent to one of the main lines of track there was a small cabin which was occupied by watchmen when on duty at the crossing. At the time the plaintiff approached the crossing there was no watchman on duty there, but usually there was a watchman at this crossing. As the plaintiff approached the crossing there were box cars on the track nearest Marietta street on both sides of the crossing. As he got past the first track from Marietta street on which the box cars were standing, an outbound train, headed north, was passing over the crossing. When this train passed, the plaintiff proceeded across the track along which the train had just passed and onto the next track, when he was struck by an incoming train, which was being operated over defendant's tracks by defendant's servants. As this train approached the crossing, no bell was rung, no whistle blown, or other signal given. The train was traveling at a speed of from 25 to 30 miles an hour. This crossing was a much-used one within the limits of the city. Because of the presence of the box cars on each side of the crossing, a person entering upon the crossing from the Marietta street side could not see approaching trains until he got beyond the tracks on which the box cars were standing. This condition rendered the crossing dangerous to persons who used it When the plaintiff discovered the presence of the train, it was so close to him and traveling so fast that it was impossible for him to get out of its way. Plaintiff sets up that the defendant was negligent in that, notwithstanding the fact that the box cars were standing on the tracks adjacent to the track on which the trains were being run, and notwithstanding the fact that the crossing was in a thickly populated section of the city and much used, the train which struck him approached the crossing at a high and reckless rate of speed, in that the engineer of the train failed to sound any warning of the approach of the train, and in that it failed to have on duty at the time a watchman to warn persons of the approach of trains. Plaintiff set up that he was in the exercise of ordinary care, and that the proximate cause of his injuries was the negligence of the defendant. The defendant demurred to the petition, and the court sustained the demurrer. To this judgment the plaintiff excepts. Held:

1. It is an elementary rule of construction of pleadings that the pleading is to be construed most strongly against the pleader, and that, if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference, on demurrer, will prevail in determining the rights of the parties. Krueger v. MacDougald, 148 Ga. 429 (1), 96 S. E. 867.

2. There being no allegation to the contrary, it must be assumed that the plaintiff was a person of ordinary intelligence and that he was laboring under no physical defect or disability which rendered him incapable of appreciating his situation and of knowing the dangers incident thereto. Thomas v. Georgia Granite Co., 140 Ga. 459 (2), 79 S. E. 130.

3. No person ean recover damages from a railroad company for injuries to himself where the same are caused by his own negligence or where by the exercise of ordinary care he could have avoided the consequences to himself caused by the company's negligence. Civil Code 1910, §§ 2781, 4426; Southern Ry. Co. v. Hogan, 131 Ga. 159, 62 S. E. 64.

4. A railroad track is a place of danger, and one who goes thereon Is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon the track, even at a public crossing in a city. An ordinarily prudent person in the possession of all his faculties would not attempt to cross a railroad track at any place without using at least his sense of sight, if not that of hearing, to determine whether at the time and place he was about to cross the same there were present any of those dangers which a person of ordinary intelligence would reasonably apprehend. Western & A. R. Co. v. Ferguson, 113 Ga. 713, 39 S. E. 306, 54 L. R. A. 802.

5. If, in the exercise of ordinary care the negligence of the railroad company could have been discovered, the use by the plaintiff of his senses of sight and of hearing in an ordinarily diligent manner could have prevented the injury to himself from occurring, the plaintiff cannot recover. Georgia R., etc., Co. v. Williams, 3 Ga. App. 272, 274, 59 S. E. 846.

6. It is an established rule of pleading that conclusions In conflict with the pleaded facts are to be disregarded, and general allegations that a person could not have avoided the consequences of another's negligence by the exercise of ordinary care after it was or should have been discovered must yield, on demurrer, to the particular facts shown, where inferences from the facts are necessarily to be drawn contradictory of the conclusions. Moore v. S. A. L. Ry. Co., 30 Ga. App. 466 (4), 118 S. E. 471.

[172 S.E. 779]

7. Under the decision of this court in Peeples v. L. & N. R. Co., 37 Ga. App. 87, et seq., 139 S. E. 85, the facts of which case were so similar to those in this case as to make the rulings in that case applicable here, the court below did not err in sustaining the demurrer and dismissing the petition. In that case there were allegations that there was no watchman at the crossing; that the train at the crossing was making so much noise that the plaintiff could not hear the approaching train; that the crossing was a much-used one in a city; that there was no ringing of a bell or blowing of a whistle or other signal given of the approach of the train; and that the defendant violated a speed ordinance of the city in approaching the crossing. In that case the point was made, as in the present case, that the question of negligence and lack of ordinary care was one for a jury to pass upon, and not for decision by the court as a matter of law. In this connection, see the Peeples Case, supra, Jarrett v. A. & W. P. R. Co., 83 Ga. 350, 9 S. E. G81, and Moore v. B. A. L. Ry., 30 Gn. App. 400 (G), 118 S. E. 471.

Judgment affirmed.

JENKINS, Presiding Judge (concurring specially).

I agree to the judgment, as I think the case is distinguishable from the holding made by this court in Reed v. Southern Ry. Co., 37 Ga. App. 550 (3), 140 S. E. 921, delivered by the writer of this special concurrence and referred to by Judge STEPHENS In his dissent As clearly pointed out by Judge SUTTON in what he says in the motion for rehearing, the standing box cars, which in the petition are alleged to have constituted an obstruction to the vision of the plaintiff in approaching the railroad track, had already been passed by the plaintiff, and played no part in his failure to discover the approaching train by which he was injured. In this respect the case differs from the Reed Case, referred to. I also think that the case is distinguishable from Southern Ry. Co. v. Sla-ton, 41 Ga. App. 759, 154 S. E. 718, which was also delivered by the writer of this special concurrence, and in which it was stated that the "stop, look and listen" rule is not of force in this state. As I see it, the plaintiffs petition in the instant case fails to set forth a cause of action, for the reason that, under the particular facts and circumstances stated by his petition, the plaintiff in stepping out from behind the end of a moving train immediately onto another track beyond, and immediately in front of another train moving in the opposite direction, put himself in a position where he could not possibly protect himself, and where the defendant could not protect him against his own negligence. This, to my mind, is a very different situation from the ordinary case where a person approaches a railroad track and is injured by a passing train. As pointed out in the Slaton Case, in such ordinary cases it is a question for the jury to say whose negligence constituted the proximate cause of the injury, and to pass upon the question of comparative negligence. In the instant case, however, it would appear that the plaintiff simply took a blind chance that a train would not be approaching on the further track when ho stepped from behind the rear of the rumbling passing train immediately in front of the approaching train on the other track, by which he was injured.

STEPHENS, Judge (dissenting).

As alleged in the petition, the plaintiff was injured at a public railroad crossing where ho had a right to be and assume that the defendant's train would be operated in accordance with the statutory requirements as to speed and the sounding of an alarm upon its approach to the crossing. His right to be on the crossing was equal to that of the railroad. As was stated by Judge Bleckley in Central Railroad, etc., Co. v. Smith, 78 Ga. 694, 700, 3 S. E. 397, 399, the plaintiff, being on a crossing...