Collier v. Pollard

• Decision Date: 12 May 1939
• Docket Number: 27503.
• Citation: 2 S.E.2d 821,60 Ga.App. 105
• Parties: COLLIER et al. v. POLLARD.
• Court: Georgia Court of Appeals

2 S.E.2d 821

60 Ga.App. 105

COLLIER et al. v. POLLARD.

No. 27503.

Court of Appeals of Georgia, Division No. 2.

May 12, 1939

Syllabus by the Court.

Where damages are proved to have resulted from operation of railroad cars, a presumption of negligence arises against railroad, and plaintiff may recover unless railroad carries burden of showing that damage was done by consent of injured person, was caused by his negligence, or that railroad was not guilty of negligence charged, or if so, that injured person could have avoided its consequences by exercising ordinary care after it had or should have become apparent.

Even if negligence of person injured through operation of railroad cars contributed to injury in some degree of negligence less than that of railroad, recovery may be had for damages in an amount diminished in proportion to contributory negligence.

Where plaintiff's evidence in action for damages resulting from operation of railroad cars shows facts which would not authorize a recovery, a nonsuit is proper.

Where plaintiff relies on more than one act of negligence, it is not necessary that he establish all the acts relied on to be able to recover.

The failure of a person approaching a railroad crossing and unaware of the approach of a train to stop, look, or listen is not a lack of ordinary care preventing recovery, as a matter of law, in a suit for ordinary negligence.

What precautions should be taken by a person approaching a railroad crossing is a jury question.

Where evidence does not disclose whether person injured at railroad crossing failed to look or listen, in absence of evidence to the contrary, it is presumed that he complied with any duty that may have devolved on him in that respect.

Questions of negligence, proximate cause, and failure to exercise ordinary care in avoiding the consequences of another's negligence are all questions for jury, except in plain and indisputable cases.

In action for death of motorist killed in crossing collision where there was evidence that a speed ordinance was violated by railroad, and there was no evidence to show what precautions motorist took before going on crossing, whether he discovered railroad's negligence in time to avoid it or that he could have avoided it by the exercise of ordinary care, a jury case was presented.

There being no evidence to show what precautions the deceased took before going on the railroad crossing, or as to whether he discovered the negligence of the defendant in time to avoid it by the exercise of ordinary care, the court should have submitted the questions involved to a jury for determination. It was error to grant a nonsuit.

This is an action brought by the children of James C. Collier for the homicide of their father. The petition alleged in substance that about 11 A.M. on the 21st day of March, 1938 James C. Collier was riding in an automobile by himself and was traveling in a westerly direction in the city of Barnesville, on Market Street, which leads across the right of way of the Central of Georgia Railroad at what is known as Elm crossing; that the automobile occupied by Collier approached the public grade crossing, and as the automobile entered upon the railroad track at the crossing it was struck by a fast moving southbound train of the defendant which knocked Collier and the automobile in which he was riding violently from the right of way and inflicted mortal wounds on Collier from which he immediately died; that the defendant was negligent in that the train was being operated at a speed of 50 miles per hour or faster as it approached the crossing, and the engineer, and fireman, the agents and servants of the defendants in charge of the train failed to ring any bell or give any signal as said train approached the crossing and failed to check the speed of the train as it approached the crossing; that defendant was negligent per se in that the train was approaching the crossing at a speed of 50 miles per hour or faster in violation of an ordinance of the City of Barnesville which prohibits a train from crossing the street at a greater speed than ten miles per hour; that the engineer and fireman in charge of the train negligently failed to keep a proper lookout and that the engineer failed to give any signal, by bell or otherwise, of the approach of the train and the engineer and fireman failed to check the speed of the train by application of the brakes or otherwise as they in the exercise of ordinary care should have done when they saw or in the exercise of ordinary care could have seen, the automobile approaching within a few feet of the crossing and on the crossing in front of them; that Collier was free from negligence and could not have avoided the injuries and death by the use of ordinary care and diligence.

The defendant filed an answer in which the allegations of the petition were denied, and contended that the ordinance mentioned in the petition was invalid.

R. O. Smith testified for the plaintiff that he was delivering mail on the day of the accident and was 200 yards up Elm Street from the crossing of the Central of Georgia Railroad where Collier was killed; that he saw the train come in and that it was traveling 40 miles per hour in his opinion; that he did not notice any signals or hear any bell ringing or whistle blowing; that he did not hear the impact of the collision but did hear the brakes of the train slammed on; that he noticed the three distress signals after the brakes went on; that he crossed the crossing twice a day; that there is an incline to the tracks at the crossing from both streets; the incline is about 20%; that from the start of the incline to the tracks is about 30 or 40 feet; that there are three tracks; that the train comes in on a curve on the inside track; that you could see better on the crossing than when you start up; that an approaching train can be seen 500 feet up the track; there are two semaphore signals at the Elm Street crossing which indicate when a train is in the block but that he did not notice them that morning; that what attracted his attention was that just as he came out of the walk the engine scooted by him; that the train, to the best of his knowledge, did not blow for the crossing; that there are no bells at the Elm Street crossing and no signals except the semaphore signals which are for railroad men; that you would have to be acquainted with the semaphore system before the board would mean anything; that he heard the brakes applied and the distress signal given.

Mrs Alton Jones, sworn for the plaintiff, testified that she was near the Elm Street crossing on the day of the accident; that she saw the train and that it was traveling 25 or thirty miles an hour; that when she returned to the scene Mr. Collier was dead and he and his car were on the other side of the track; that the train cleared the crossing; that she saw nobody at the crossing before the accident; that she and her sister had passed over the crossing; that the first thing that attracted her attention was the whistle blowing; that...