Georgia Northern Ry. Co. v. Rollins
| Decision Date | 22 February 1940 |
| Docket Number | 27970. |
| Citation | 8 S.E.2d 114,62 Ga.App. 138 |
| Parties | GEORGIA NORTHERN RY. CO. v. ROLLINS. |
| Court | Georgia Court of Appeals |
Judgment adhered to on Rehearing March 30, 1940.
Syllabus by the Court.
J O. Gibson and Waldo DeLoache, both of Moultrie, for plaintiff in error.
J E. Craigmiles, of Thomasville, for defendant in error.
1. The plaintiff's petition as amended sought recovery for the killing of a cow and a hog and injury to a heifer by the defendant railroad company's train at a public crossing. The petition, as amended, alleged that the defendant, while operating its train "through its engineer, agents and servants, failed to slow down its locomotive so as to have the same under control at said crossing." That the said crossing is a public crossing. "All the live stock *** were on said track of said railroad company within fifty feet of said crossing, known as Spangler's crossing, in full view in the day time and in such position on said track as to be visable to the said engineer, agents and servants of defendant railroad corporation. *** that by the exercise of ordinary care and diligence, by constant look out ahead of the engine and locomotive, the defendant could have avoided the killing of said cow and hog and inflicting said injuries to said heifer. The said defendant did not keep a constant lookout ahead of the said engine and locomotive. Your petitioner avers defendant by failing to slow down its said engine and locomotive and have it under control could have avoided the said killing of said cow and said hog and inflicting said injuries to said heifer and failed to use ordinary care and diligence in the handling of its said engine and locomotive
at said crossing. Petitioner declares that defendant was guilty of negligence in the killing of said cow and hog and inflicting said injuries to said heifer." In the original petition, the plaintiff had alleged that the "defendant was guilty of violating the laws of said State in not slowing down its said train to be under control and the killing of said cow, heifer and hog is negligence per se," but prior to the time that the judge ruled upon the demurrer the plaintiff struck this portion of his original petition.
The defendant demurred to the plaintiff's petition on the ground that the allegation contained in the petition that the "engineer, agents and servants failed to slow down its locomotive so as to have the same under control at said crossing" constitutes no allegation of negligence when construed in the light of the other allegations of the petition, and that "the speed of said train at such time and place is not alleged."
While that part of § 2675 of the Code of 1910 recites that when ever the engineer shall arrive at the blowpost he shall be required "to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road," has been repealed, yet, Code, § 94-506, Code of 1933 replaces this section, and although it is less stringent still it requires the engineer to keep a constant and vigilant look out ahead along the track ahead of said engine and to otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which may be on said crossing, or upon the line of said railway at any point within fifty feet of such crossing. While it is thus true that there is no longer a statute expressly requiring the engineer, as a matter of law, "to slow down his train and to have it under control at public crossings," yet, in connection with the other allegations of the petition, it may, under some circumstances, of course be alleged that it was negligence (not negligence per se) in failing to slow down its locomotive and train so as to have the train under control at a public crossing. Atlantic Coast Line Railroad Co. v. Bradshaw, 34 Ga.App. 360, 129 S.E. 304; Western & Atlantic Railroad v. Leslie, 48 Ga.App. 714, 719, 173 S.E. 170. The effect of the allegations in the petition that the operation of its train by the defendant's agents and servants at the time and place in question was not that it was negligence on the part of the defendant...
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