George A. Fuller Const. Co. v. Elliott

• Citation: 92 Ga.App. 309,88 S.E.2d 413
• Decision Date: 02 June 1955
• Docket Number: 35611,35628,2,Nos. 35606,Nos. 1,35629,35624,35627,s. 35606,s. 1
• Parties: GEORGE A. FULLER CONSTRUCTION CO. v. Mrs. Ben H. ELLIOTT et al. Mrs. Ben H. ELLIOTT et al. v. GEORGE A. FULLER CONSTRUCTION CO. CENTRAL OF GEORGIA RAILWAY CO. v. Mrs. Ben H. ELLIOTT et al. Mrs. Ben H. ELLIOTT v. CENTRAL OF GEORGIA RAILWAY CO. SOUTHERN RAILWAY CO. v. Mrs. Ben H. ELLIOTT et al. Mrs. Ben H. ELLIOTT et al. v. SOUTHERN RAILWAY CO
• Court: United States Court of Appeals (Georgia)

Page 413

88 S.E.2d 413

92 Ga.App. 309

GEORGE A. FULLER CONSTRUCTION CO. v. Mrs. Ben H. ELLIOTT et al.

Mrs. Ben H. ELLIOTT et al. v. GEORGE A. FULLER CONSTRUCTION CO.

CENTRAL OF GEORGIA RAILWAY CO. v. Mrs. Ben H. ELLIOTT et al.

Mrs. Ben H. ELLIOTT v. CENTRAL OF GEORGIA RAILWAY CO.

SOUTHERN RAILWAY CO. v. Mrs. Ben H. ELLIOTT et al.

Mrs. Ben H. ELLIOTT et al. v. SOUTHERN RAILWAY CO.

Nos. 35606, 35627, 35611, 35628, 35624, 35629.

Court of Appeals of Georgia, Division Nos. 1, 2.

June 2, 1955.

Syllabus by the Court.

1. The renewed special demurrers of the defendant railroads were without merit.

2. The petition as amended set forth a cause of action against the defendant railroads for the death of the plaintiff's husband, which was alleged to have resulted from his attempt to rescue persons and save property, as dealt with in the opinion.

3. The petition as amended did not show that any duty devolved upon the defendant construction company to properly affix the brakes or scotch the wheels of the cars which became loose on the track of one of the defendant railroads, and which prompted the rescue effort of the deceased husband of the plaintiff.

4. The answer of the defendants, properly construed, were addressed to the petition as amended and merely went in denial of any liability on the part of the defendants, and were not subject to the objections in the grounds of the plaintiff's special demurrers.

Mrs. Ben H. Elliott filed in Floyd Superior Court, against Central of Georgia Railway Company, Southern Railway Company, and George A. Fuller Construction Company, a petition which as amended alleged substantially the following: Petitioner is the widow of Ben H. Elliott, deceased, and at the time of his death on April 30, 1953, he left surviving him three minor children. The deceased was a trained engineer and experienced businessman, engaged in the development of houses and buildings. He was a strong and able-bodied man, earning $17,500 per year, and his earnings had been increasing from year to year, and would continue to increse in the future, to at least $25,000 per year. He was 37 years of age, and had an expectancy of life of 29.64 years. Petitioner is entitled to recover for the full value of the life of her husband in the gross sum of $741,000, which at the present cash value would be $278,100. The defendant, George A. Fuller Construction Company, was a general contractor engaged in building a large industrial plant for General Electric Company, located just west of the City of Rome, Georgia. The defendant, Southern Railway Company, constructed, maintained, and used for the operation of its trains and freight cars a spur track from its main line, in a northerly direction to the plant site of the General Electric Company. The spur track of the defendant, Southern Railway Company, was so constructed that it intersected at right angles the main line of the defendant, Central of Georgia Railway Company, at a point approximately 100 feet east of Redmond Circle Road, and 400 feet south of a wire fence surrounding the location of the General Electric Company's plant. The spur track was constructed and maintained so that the low point of the grade was 100 feet north of defendant's, Central of Georgia Railway Company's, track and from the low point northerly toward the plant site there was a rise of 1.7' in 200 feet, and from the low point southerly, crossing the defendant's, Central of Georgia Railway Company's, tracks the rise was two tenths of one foot in 200 feet. The defendant, Central of Georgia Railway Company, had, prior to and since the time of the injury, used and maintained its track or railroad for the purpose of running its engines and trains over its main line from Griffin, Georgia, to Chattanooga, Tennessee. The main line of the defendant, Central of Georgia Railway Company, south of the intersection is straight, and the crossing is plainly visible for a distance in excess of 1,000 feet. The engineer on a train on the track of the defendant, Central of Georgia Railway Company, in approaching the intersection and going in a westerly direction, could not, on account of the growing of trees and the location of houses on the south side of its main line, see freight cars or trains approaching the crossing from the south and on the spur track of the defendant, Southern Railway Company, until the train was within approximately 100 feet of the intersection. On April 29, 1953, at approximately 6:30 p. m., there were three gondola-type freight cars on the spur track of the defendant, Southern Railway Company, inside the property of General Electric Company, and about 600 feet north of the intersection of the spur track with the main line of the defendant, Central of Georgia Railway Company. These cars had been placed there by the defendant, Southern Railway Company, by and through its agents and employees, whose names are unknown to petitioner, but well known to the defendants, Southern Railway Company and George A. Fuller Construction Company. At the time the industrial plant of General Electric Company was in the process of construction by the defendant, George A. Fuller Construction Company, and the freight cars contained, or had contained, certain materials used in the construction thereof by the defendant, George A. Fuller Construction Company. Through the combined and concurrent negligence of the employees of the Southern Railway and the employees of George A. Fuller Construction Company, the brakes on the freight cars were not properly set, and no other means of braking or preventing the cars from rolling down the spur track towards the defendant's, Central of Georgia Railway Company's, main line, should they become loose, were taken. The defendant, Southern Railway Company, in the building, construction, and maintenance of its spur line, failed to provide the spur track with a derailer, so that, should its car or cars become loose, the same would be derailed and prevented from rolling and crossing the main line of the defendant, Central of Georgia Railway Company, and obstructing the same. Two of the freight cars so placed upon the spur track became loose and started rolling down the grade towards the main line of the defendant, Central of Georgia Railway Company. They crossed the low point in the grade 100 feet north of the track of the defendant, Central of Georgia Railway Company, and built up such speed that they continued along the gradual rise thereof to the main line of the defendant, Central of Georgia Railway Company, for a distance of approximately 400 feet, then began rolling back northerly towards the main line of the defendant, Central of Georgia Railway Company, moving at a speed of approximately 4 miles an hour. Petitioner was riding along the Redmon Circle Road in an automobile together with her husband and their three children. Her husband saw the runaway freight cars and anticipating there would be a train approaching the intersection of the main line of the defendant, Central of Georgia Railway Company, and that the cars would come to rest and stop on the intersection, and in an effort to save the lives of persons operating the train of the defendant, Central of Georgia Railway Company, and others thereon, and to prevent and avoid a collision between the train and the cars, jumped from his automobile, dashed to the runaway freight cars, and in an attempt to stop the cars from rolling across the intersection into the path of the approaching train, threw rocks and sticks under the wheels of the freight cars, but was unable to stop them. The engine and train were on the track of the defendant, Central of Georgia Railway Company, approaching the intersection, going in a westerly direction at a rate of speed of approximately 20 miles per hour. As the train approached the crossing, its whistle was sounded, and petitioner's husband ran along the spur track of the defendant, Southern Railway Company, to its intersection with the track of the defendant, Central of Georgia Railway Company, and stood in the center of the track signaling with his hands to the approaching train, in an effort to stop it and to avoid a collision between the train and the runaway cars. The engineer of the train of the defendant, Central of Georgia Railway Company, applied the brakes and the train began to slow down, but when it had reached a point approximately 50 feet from the intersection, its speed was increased. The freight cars on the spur track crossed the track of the defendant, Central of Georgia Railway Company, one coming to a stop just north of the crossing, leaving the second freight car across the intersection of the tracks, and was struck by the train of the defendant, Central of Georgia Railway Company, and knocked it over and upon petitioner's husband, who was then standing approximately six or eight feet southwest from the southwest corner of the intersection. After striking the freight car, the train continued some 200 feet beyond the intersection, before stopping, practically demolishing one of the freight cars, and turning it over and onto petitioner's husband, crushing the lower part of his body and causing such injuries that he died within a few hours. There was no flagman or modern interlocking signal device at the crossing.

The defendant, Southern Railway Company, was guilty of negligence: (a) In constructing the spur line across the main line of the defendant, Central of Georgia Railway Company, in such a manner that the low point of the grade was such that, if two or more freight cars were improperly braked and became loose, when placed either to the north or south of the intersection, they would come to rest across the main line of the defendant, Central of Georgia Railway Company. (b) In constructing, maintaining, and operating its trains and freight cars on the spur line without a derailer, or other automatic device, to prevent cars standing and placed on the spur line, and...