Hixon v. Ga. Southern &. F. Ry. Co, (Nos. 5325, 5337.)

• Decision Date: 17 February 1927
• Docket Number: (Nos. 5325, 5337.)
• Parties: HIXON. v. GEORGIA SOUTHERN &. F. RY. CO. GEORGIA SOUTHERN & F. RY. CO. v. HIXON.
• Court: Georgia Supreme Court

163 Ga. 734

137 S.E. 260

HIXON.

v.GEORGIA SOUTHERN &. F. RY. CO.

GEORGIA SOUTHERN & F. RY. CO.

v.HIXON.

(Nos. 5325, 5337.)

Supreme Court of Georgia.

Feb. 17, 1927.

Rehearing Denied Feb. 26, 1927.)

(Syllabus by Editorial Staff.)

Error from Superior Court, Houston County; Malcolm D. Jones, Judge.

Action by Addie Hixon against the Georgia Southern & Florida Railway Company. Judgment for defendant, plaintiff brings er-ror, and defendant files cross-bill. Reversed on main bill of exceptions; affirmed on crossbill.

Kathleen, Ga., is an unincorporated railroad station in Houston county, at which there is a station building. The railroad at that point runs north and south. There is a main line track, on each side of which is a side track. There is a space of approximately 6 feet between the western rail of the main line track and the eastern rail of the west side track. A public road crosses the railroad tracks at a point immediately south of the station building. About 1 o'clock in the day a south-bound freight train took the west side track, and blocked the crossing, the tender of the locomotive standing on the crossing. S. S. Hixon, a traveler on the public road in his wagon, approached the east side of the crossing, and waited approximately 25 minutes for the railroad employees to unblock the crossing. Finally he signaled the engineer, requesting him to unblock the crossing. The engineer shook his head. Thereupon Hixon got off the wagon and walked across the railroad tracks to the side of the engine, about 24 feet south of the south edge of the public road crossing, and stood in the said space between the west rail of the main line track and the east rail of the west side track, with his back to the north, and asked the engineer to clear the crossing. The engineer assented, and started the engine in motion, which was puffing and blowing, and making a great deal of noise. As the engine started, Hixon stepped slightly aside towards the main line track. As he did so, a southbound passenger train approached suddenly without warning or giving signal, and struck him in the back, knocking him down, and running over him and cutting his body to pieces. The train ran approximately four car lengths after striking Hixon before it stopped, which was two car lengths beyond the usual stopping place. The track, was straight, and Hixon was in plain view, and could have been seen by the engineer for a quarter of a mile. The train ran over the crossing at a rate of 12 miles an hour. The engineer did not, in compliance with section 2 of the act of 1918 (Acts 1918, p. 212), upon reaching the blow post 400 yards from the crossing, blow the whistle two long and two short loud and distinct blasts at intervals of five seconds between each blast; nor did the engineer, after reaching the blow post farthest from the crossing, and while approaching the crossing, keep a vigilant lookout along the track ahead of the engine in order to avoid injury to any person who might be on said crossing or upon the line of railway within 50 feet of such crossing.

Shortly after the catastrophe the widow of Hixon was notified, and she went to the scene, arriving at about 3 or 4 o'clock in the afternoon. She saw the mutilated remains scattered along the track, the hands at one place, the head at another, and the liver at another. In great distress she was endeavoring to collect the remains when she was persuaded by a friend to stop and return home. She was without business experience, ignorant of her legal rights, and greatly agitated and distressed. Her "one thought" was to have the remains of said husband buried at his old home in another county. In these circumstances a local undertaker who had been employed by the attorney of the railroad company went to her for directions as to disposition of the remains, and she expressed to him her desire as above indicated. Within a few minutes after the undertaker left, about 5 o'clock in the afternoon, the claim agent of the railroad came to her home, and stated to her that he had seen the undertaker, and, if she did not sign a release to the railroad company, she would have to bury her husband at her own expense; that he was in a hurry to get back and notify the undertaker; that it was too great expense to bury her husband at his old home; that the railroad company would do nothing towards burying her husband, but would "hands off" unless she would sign a release. He also stated that the railroad company was not liable to her for the homicide, and that she had no case whatever against the company. At the time these statements were made to her, suffering as she was from the grief and sorrow of her husband's death and the recent vision of his mangled remains, she did not have mental capacity to make a contract or understand the legal effect of a contract of release; but, relying on said representations, and being herself unable financially to provide for the burial of her said husband, she signed the release. In fact, the said statements made to her by the claim agent to induce her signature were all false, and, being made under the circumstances, amounted to duress and legal fraud. The consideration stated in the release was $50 and the expense incurred by the company in burying her husband, amounting to $135. Immediately after realizing the fraud, and being advised as to her legal rights, she elected to rescind the contract, and tendered back the $50 and the amount of burial expenses. In an action instituted by her against the railroad company for damages and for cancellation of the contract of release, the petition as amended alleged substantially all that is stated above.

The defendant filed demurrer on the following grounds: Generally: Because (a) the petition fails to allege a cause of action or right to recover; (b) the petition shows a complete accord and satisfaction by a valid contract upon a valuable consideration, and does not allege ground for setting aside the contract. Specially: (a) To subparagraph (a) of paragraph 16. The plaintiff struck this subparagraph by amendment, (b) To the lan-guage, "Petitioner shows that the procuring of her signature to the release as aforesaid amounted to duress and legal fraud, and that said release is therefore null and void, and of no legal binding effect upon petitioner, " occurring in paragraph 24 of the petition, because such allegations are mere conclusions of the pleader. The demurrer was overruled. The defendant also filed an answer and a special plea; the latter setting up the contract of release. On the trial the plaintiff introduced evidence tending to show the location of the railroad tracks, the public road, the blocking of the crossing, the time of the blocking, the fact of the homicide, the mutilation of the body, the signing of the release, payment of the money, repudiation of the contract, and tender back of the money, substantially as alleged in the petition.

Moody testified in part:

"Mr. Hixon got off the wagon and walked over there, and asked the engineer how long it would be before he could cross. * * * I walked over to where he was standing right there at the steps where you step on the freight engine, and asked him to give me a match. When I got the match from him I was standing back over here on this track here, which was the main line track. The only conversation I heard between Mr. Hixon and the engineer on the freight train was when he asked him how long it would be before he could cross. The engineer said it would not be long. I could not exactly tell how long a time passed after the engineer told Mr. Hixon that it would not be long, before the freight train commenced to move. After I got the match, I stood there a pretty good while looking at the engine. While I was standing there looking at the engine Mr. Hixon was standing there talking to the engineer. I could not hear what they were talking about. With my match 1 lit my cigarette. A minute is 60 seconds long. 1 stood there about 3 minutes after I got the match, and commenced smoking my cigarette, before the freight train commenced to move. I did not hear any passenger train coming down there at that time on that main line. I did not hear any bell or whistle blown by any passenger train. When we were standing there after 1 lit my cigarette, and had stood there about 3 minutes, this freight train started shooting off steam and moving off, and I just looked up the railroad, and, when I looked around, the passenger train was about as close on me as from here to that bookcase there, about 10 feet away. when I saw the passenger train that close to me I reached over to pull Mr. Hixon back on this side, and I could not quite reach him, and I jumped back on this side of the track. I reached over here to pull Mr. Hixon back over here. 1 could not touch him. Then I jumped back over here. I was standing here; I jumped over here. Mr. Hixon was standing right here. The passenger train did not hit me. It missed me about a foot. The passenger train was coming from towards Macon, going south."

Walton Hixon, son of deceased, testified in part:

"I first learned that he was killed about 1 o'clock. I went on over to the station. My mother went * * * with me. When we got...