Evans v. Ga. Northern R. Co

• Decision Date: 26 February 1949
• Docket Number: No. 32298.,32298.
• Parties: EVANS . v. GEORGIA NORTHERN R. CO.
• Court: Georgia Court of Appeals

52 S.E.2d 28

EVANS .

v.GEORGIA NORTHERN R. CO.

No. 32298.

Court of Appeals of Georgia, Division No. 1.

Feb. 26, 1949.

Syllabus by the Court.

It clearly appears from the petition in the present case that the sole proximate cause of the collision was the failure of the operator of the automobile, with full knowledge of the conditions then existing, to exercise ordinary care and control the automobile so as to avoid striking the train that was actually proceeding across the intersection, and the trial judge did not err in sustaining the general demurrer of the defendant and in dismissing the plaintiff's petition.

Error from City Court of Albany; Clayton Jones, Judge.

Action by Harold J. Evans against the Georgia Northern Railroad Company for personal injuries sustained in a train-auto mobile collision. To review the judgment, plaintiff brings error.

Judgment affirmed.

H. G. Rawls and J. W. Kieve, both of Albany, for plaintiff in error.

Gibson & DeLoache, of Moultrie, and Bennet, Peacock & Perry and Asa D. Kelley, Jr, all of Albany, for defendant in error.

SUTTON, Chief Judge.

Harold J. Evans brought suit in the City Court of Albany against the Georgia Northern Railroad Company for the recovery of $25,000 damages for injuries allegedly sustained as a result of a collision between an automobile in which he was riding and a freight train of the defendant. In the petition it is alleged that: (3) On February 7, 1948, he was riding in an automobile, driven by and under the exclusive control of his wife, and belonging to her mother, in an easterly direction along the Albany-Sylvester highway (U. S. Highway No. 50), a paved, heavily traveled route, which is a connecting artery for traffic between Albany and Turner Air Base. (4) The automobile was being operated by his wife in a careful and cautious manner, at a speed not in excess of 20 miles per hour, when, without any notice or warning, it collided with a moving freight train, which, at the time, was occupying the railroad lines of the defendant at a crossing intersecting the highway 2112 feet east of the city limits of Albany. (5) This collision occurred about 4:00 a. m. when the atmosphere was obscured by a heavy fog, and his wife was aware of such condition and was driving at a rate of speed commensurate with the distance she could see down the highway from the reflection of the headlights on the automobile, but the reason she and the petitioner could not see the freight train was that the headlights on the automobile were dimmed in order to see the surface of the road and therefore projected under the boxcars of the train. (6) The defendant was negligent as follows: "(a) Defendant failed to have and maintain an electric bell, gong, or other signal apparatus which would bysounding apprize persons approaching the crossing of the presence of the train standing upon or passing over the crossing, (b) Defendant failed to have an electric light suspended over the crossing to illuminate the same in order to show persons on the highway any obstruction upon the crossing notwithstanding the atmospheric conditions and the darkness then and there prevailing, (c) Defendant failed to provide a red or other colored light which would have penetrated the mist, fog and darkness and would have apprized petitioner and his wife of the presence of the freight train upon said crossing, (d) Defendant failed to hail or otherwise warn the driver of the car as she approached the crossing, which would have apprized her of the danger that confronted her. (e) The defendant, being aware that the heavy fog would obscure the visions of any traveler who might be upon said highway, was negligent in crossing said intersection with a 46 car freight train without having stationed at said crossing a flagman or some other servant displaying a light or other signaling device to warn travelers of the danger incident to said situation, (f) In failing to ring the bell on the locomotive pulling said train during the entire time the boxcars were traversing said crossing in order that petitioner and his wife, whose vision was obscured by the mist and fog, might have been apprized of the obstruction on the highway." Other allegations of the petition give details of the injuries and indicate that the plaintiff, a soldier, is totally and permanently disabled. The defendant demurred generally and specially to the petition, and the trial judge sustained the demurrers and dismissed the petition, to which...