GEORGIA RAILROAD AND BANKING COMPANY v. Otts, 16341.
| Citation | 245 F.2d 561 |
| Decision Date | 19 June 1957 |
| Docket Number | No. 16341.,16341. |
| Parties | GEORGIA RAILROAD and BANKING COMPANY, Appellant, v. James Taft OTTS, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Eugene A. Epting, William L. Erwin, Athens, Ga., Erwin, Nix, Birchmore & Epting, Athens, Ga., for appellants.
George D. Finley, Birmingham, Ala., Jake B. Joel, Athens, Ga., for appellee.
Before BORAH, RIVES and BROWN, Circuit Judges.
The jury found appellant Railroad guilty of negligence proximately causing the injuries received by the plaintiff in a truck-diesel locomotive crossing collision at Crawford, Georgia. The Trial Court denied motions for a directed verdict and for judgment n.o.v. We agree with the Trial Court and thereby reject the Railroad's sole contention that it was entitled to judgment as a matter of law.
The plaintiff, operating a loaded truck-trailer over this highway (U.S. Highway 78), completely unfamiliar to him, was unaware of the presence of the railroad crossing in the small town of Crawford as he entered upon it and was struck by Railroad's train at 2:00 o'clock in the morning of January 20, 1955. The highway (east-west) intersects the track (north-south) at a right angle. The plaintiff was driving east, the train moving south. The train was using the backing air whistle, but did not sound the "big horn" until the moment of collision. An intersection is formed by a street parallel and immediately adjacent to the railroad. Stores and businesses were located on either side of the highway. The track of the crossing itself was recessed into the level of the street. The night was dark, clear and cold (16°).
To warn eastward-bound approaching motorists of the crossing were two signs, the existence of which according to appellant not only frees the Railroad from any negligence but also establishes as a matter of law that the principal cause of the accident was the plaintiff's own negligence in ignoring or failing to see what was placed there for his and others' protection.
The first sign, located approximately one block west of the crossing on the right-hand shoulder of the road was maintained by the Highway Department and consisted of a round disk containing an "X" flanked by the letters "R.R." But there was evidence, although sharply contradicted, from which the jury could find that this sign was effectively obscured by the limbs of an over-hanging chinaberry tree. And the second, a statutory "cross-buck" warning sign, so heavily relied on by...
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