Ga. R. & Banking Co v. Stanley, (No. 18774.)
| Decision Date | 17 November 1928 |
| Docket Number | (No. 18774.) |
| Citation | 145 S.E. 530,38 Ga.App. 773 |
| Court | Georgia Court of Appeals |
| Parties | GEORGIA R. & BANKING CO. et al. v. STANLEY et al. |
(Syllabus by the Court.)
Error from Superior Court, Taliaferro County; C. J. Perryman, Judge.
Suit by E. J. Vandiver a minor, by another, his next friend, against the Georgia Railroad & Banking Company and others in which E. J. Stanley administrator, was substituted as plaintiff Judgment for plaintiff, and defendants bring error Affirmed.
Hawes Cloud and J. A. Beazley, both of Crawfordville, and Miles W. Lewis, of Greensboro, for plaintiffs in error.
Edgar Latham and McElreath & Scott, all of Atlanta, and Horace M. Holden and John B. Gamble, both of Athens, for defendants in error.
The exception in this case is to the overruling of a general demurrer to the plaintiff's petition.
E. J. Vandiver, a minor, by one as next friend (for whom was later substituted a guardian, his mother being dead), brought suit against Georgia Railroad & Banking Company, Louisville & Nashville Railroad Company, and Atlantic Coast Line Railroad Company, to recover damages for the alleged wrongful death of petitioner's father, who was killed at a grade crossing on a line of railroad owned by the first-named defendant and operated by the other defendants as lessees. The petition made the following case: The homicide occurred in a collision between a train operated by the lessees and an automobile in which the decedent was riding. The train was "engaged in intrastate commerce within the limits of the state of Geor-gia." The decedent's death was caused entirely by the negligence of the defendants, in that the engineer in charge of the train and the engine thereof failed to blow the whistle on approaching the crossing, and failed to keep and maintain a constant and vigilant lookout along the track ahead of the engine, as required by law. In approaching the crossing, the train passed through a cut which rendered the crossing hazardous to travelers on the highway and the manner in which the train was being operated constituted a menace to any person who chanced to be upon the track at such public crossing The decedent was free from fault, and was in the exercise of ordinary care for his own protection, and could not. by ordinary care, have avoided the consequences of the negligence of the defendant. The decedent at the time of his death, was capable of earning and was earning $1,500 per year, and his life expectancy was 50 years. The petitioner, being the only surviving child, is entitled to recover the full value of the life of his father, and claims damages in the sum of $50,000.
The grounds of the demurrer were. (1) The petition sets forth no cause of action; (2) the petition shows on its face that the decedent's death was caused by his own negligence and want of ordinary care for his own safety in that he did not stop, look and listen for the approach of a train before entering upon the railroad crossing.
For a reversal of the judgment overruling the demurrer, counsel for the plaintiffs in error rely mainly upon the recent decision of the Supreme Court of the United States in Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167 in which it was held that a person attempting to drive an automobile over a railroad crossing with which he is familiar is so negligent as to bar a recovery for his death from being struck by a train, where he does not stop and look, and, if necessary, leave his vehicle in order to make sure that the crossing is safe. From a reading of the briefs, we infer that, except for that decision, the plaintiffs in error would not have brought the present case to this court. At any rate, if we consider only the decisions of our own courts, it is very plain that the petition sets forth a cause of action. In other words, if we are to decide the case according to the laws of Georgia as hitherto interpreted by the courts of this state, there would be no difficulty in affirming the judgment overruling the demurrer. We will first examine the case briefly from that standpoint, and will then consider it in the light of the Goodman Case.
The allegations of the petition sufficiently charge negligence as against the defendants. Under the law of this state it is not negligence per se for one not aware of the approach of a train to attempt to cross the railroad track without stopping, looking or listening. Davis v. Whitcomb, 30 Ga. App. 497 (5), 118 S. E. 488. Even were the rule otherwise, it does not appear from the instant petition whether or not the decedent failed to stop, look, or listen, and, in the absence of anything to the contrary, it is to be presumed that he complied with any duty that may have devolved upon him in that regard. Negligence or want of due care on the part of the decedent, or failure by him to avoid the consequences of the defendants' negligence after it was or should have been known to him, would, in a case of this sort, constitute matter of defense, to be pleaded by the defendant, where the same was not affirmatively disclosed by the allegations of the petition. Williams v Southern Ry Co., 126 Ga. 710 55 S. E. 948-Atlantic Coast Line R Co..29 Ga. App. 745 (4) 116 S. E 858; Hardwick v Figgers, 26 Ga. App. 494 (2), 106 S. E. 738, Mayor etc., of Savannah v. Waters, 27 Ga. App. 813 (2), 109 S. E. 918.
Under the Georgia cases, therefore, we think the petition good against general demurrer. Southern Ry. Co. v Tankersley 3 Ga. App. 548 (2), 60 S. E. 297; Bryson v Southern Ry. Co., 3 Ga. App. 407 (3) 59 S E. 1124; Dozier v. Central of Georgia Ry Co., 12 Ga. App. 753 (1), 78 S. E. 469; Central of Georgia Ry Co. v Barnett, 35 Ga. App. 528 (1), 134 S. E. 126; Western & Atlantic Railroad v Reed, 35 Ga. App. 538 (1), 134 S. E. 134; Reed v. Southern Ry. Co., 37 Ga. App. 550 (3), 140 S. E. 921.
The facts of this case differentiate it from the case of Peeples v Louisville & Nashville R. Co., 37 Ga. App. 87 139 S. E. 85.
Should our conclusion be different because of the decision of the United States Supreme Court in the Goodman Case? We think not for a number of reasons. In the first place, since the petition, when properly construed, discloses no act or omission that could be accounted as negligence or a want of care on the part of the decedent, being silent as to anything, which he did or failed to do, there is here no occasion for applying the rule laid down in that case. But there is still broader ground upon which to answer the above question in the negative. Assuming that the allegations should be construed as disclosing that the decedent did not stop, look, or listen, as seems to have been true in the Goodman Case, we have here no federal question (Mellon v. O'Neil, 275 U. S. 212, 48 S. Ct. 62, 72 L. Ed. 245), and it is well settled that, except as they relate to federal questions, the decisions of the United States Supreme Court are not binding upon the state courts as precedents, but that the courts of each state are responsible for the construction and application of the local laws of that state. In such instances, the decisions...
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