Cowan v. Georgia Railroad & Banking Co.

• Decision Date: 25 February 1936
• Docket Number: 24892.
• Citation: 184 S.E. 635,52 Ga.App. 677
• Parties: COWAN v. GEORGIA RAILROAD & BANKING CO. et al.
• Court: Georgia Court of Appeals

184 S.E. 635

52 Ga.App. 677

COWAN v. GEORGIA RAILROAD & BANKING CO. et al.

No. 24892.

Court of Appeals of Georgia, First Division

February 25, 1936

Syllabus by the Court.

Courts must take notice of primary physical laws, and a party will not be permitted to maintain in his pleading a contradiction of those things of which the court is required to take judicial cognizance. Under this rule, the court did not err in sustaining the general demurrer to the petition as amended.

Error from Superior Court, Rockdale County; James C. Davis, Judge.

Petition by J. W. Cowan against the Georgia Railroad & Banking Company and others. To review a judgment sustaining a general demurrer to the petition, plaintiff brings error.

Affirmed.

C. R Vaughn, of Conyers, and Wm. T. Dean, of Atlanta, for plaintiff in error.

Neely Marshall & Greene and Edgar Neely, Jr., all of Atlanta, for defendants in error.

MacINTYRE Judge.

J. W Cowan brought an action against the Georgia Railroad & Banking Company and its lessees, the Atlantic Coast Line Railroad Company and the Louisville & Nashville Railroad Company, to recover damages arising out of a collision between the plaintiff's automobile and a "coal or box car" standing on a public street crossing in the city of Conyers, Ga. The sole question is whether the judge erred in sustaining a general demurrer to the petition as amended.

By paragraph, the pertinent parts of the petition are substantially as follows:

(4) Two of the defendants' railroad tracks "immediately parallel each other" and running easterly and westerly "in a straight line" cross a much-traveled street known as "Center street" in Conyers, Ga., at a distance of three hundred yards from defendants' depot. The northernmost of said tracks is a side track and the southernmost the main track.

(5) "On the morning of November 6, 1934, at * * * 5:30 o'clock * * * petitioner approached * * * Center street crossing from a northerly direction, driving his Ford automobile coupe. Upon approaching the northernmost rail of the * * * side track, he brought his automobile to a complete stop before proceeding to cross either rail of either of said * * * tracks."

(6) "It being completely dark, petitioner, upon approaching said crossing had both headlights of his automobile burning brightly."

(7) "Petitioner, with his automobile completely still before driving upon said tracks, looked in all directions to see whether a train was approaching, and whether the crossing was clear and unobstructed, and listened to see if he could hear a train approaching, [and] seeing the passenger train, commonly known as the 'express,' stopped about a hundred yards east of the crossing, headed west, with its headlight brightly burning, and hearing another train blow about a quarter of a mile west of said crossing, and seeing the * * * sidetrack completely clear and unobstructed, and knowing it was not the custom of the railroad companies to operate two or more trains on the same track at the same time, petitioner proceeded to drive his automobile upon the tracks of said railroad, preparatory to crossing and proceeding south to his farm."

(8) "That as petitioner reached the mainline track of defendant companies, * * * he collided with the end of a coal or box car that had been left standing on said main line * * * and blocking and obstructing said crossing."

(9) "Petitioner was unable to see said coal or box car on account of the extreme brightness of the headlight of said express train completely enveloping and blinding petitioner at that point."

(10) "Petitioner charges * * * that said headlight of said * * * train was of approximately 1,000,000 candlepower, and of such brightness, power and penetrative quality as to completely void or nullify the light from the headlights of petitioner's automobile."

(11) "There was no watchman, light, or other warning device or signal, of any nature or character whatsoever, at this point or crossing at said time. * * *"

(12) The defendants "had left said coal or box car standing on said main line and blocking said crossing for a period of approximately twenty-five minutes before petitioner reached said place, without placing a watchman or other signal to warn traffic * * * that said crossing was blocked or obstructed."

(13) As a result of said collision, "petitioner was thrown violently upon and against the steering-wheel, windshield and instrument-board of his * * * automobile, by reason of which he suffered" designated injuries.

(16) That at the time of said collision there was a valid ordinance of the city of Conyers making it a penal offense for defendants to leave said car on the crossing longer than ten minutes; the ordinance being fully pleaded.

(17) Center street is a public street within the corporate limits of Conyers.

(18) "Petitioner charges * * * that the negligence of" defendants was the proximate cause of his injuries, and that the defendants were negligent in the following particulars:

(a) "In blocking said crossing * * * in violation of the ordinance of Conyers. * * *"

(b) "In blocking and obstructing said crossing at said time and place."

(c) "In failing to have a watchman, light, or any warning device whatsoever at said time and place. * * *"

(d) "In * * * allowing the agents, servants and employees in charge of said 'express train' to stop said train at such point on said tracks."

(e) In permitting said "agents, servants and employees * * * to shine and throw the headlight of said 'express train' in such manner as to blind and obscure petitioner's view of the coal or box car obstructing said crossing."

(f) "In the failure of the agents, servants and employees in charge of said * * * train to dim, blink or cut out the headlight of said express train, whereby petitioner could have and would have been able to see the obstruction of said crossing."

Subsequently paragraph 10 of the petition was amended by adding the following...