Hogan v. Louisville & Nashville R. Co.
| Decision Date | 07 January 1974 |
| Docket Number | Nos. 48439-48441,No. 3,s. 48439-48441,3 |
| Citation | 130 Ga.App. 638,204 S.E.2d 348 |
| Parties | Louise G. HOGAN et al. v. LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. (three cases) |
| Court | Georgia Court of Appeals |
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, R. Lawrence Ashe, Jr., Dennis S. Meir, Atlanta, for appellants.
Webb, Parker, Young & Ferguson, Robert G. Young, Atlanta, for appellees.
Syllabus Opinion by the Court
These three companion suits are predicated on a car-train collision which occurred about 10:49 a.m. on May 26, 1966, at the Panola Road crossing of the main line of the Georgia Railroad in DeKalb County, Georgia, which resulted in the death of the plaintiff's daughter, personal injury to the plaintiff-mother, and property damage. Just prior to the incident, Mrs. Hogan had been driving her husband's car south on the Stone Mountain-Lithonia Road which generally parallels the railroad track for some distance. Her aunt, Mrs. Bush, was partially reclined on the right rear seat with her head resting on a pillow. Mrs. Hogan's infant daughter was on the right front seat. Approaching the crossing she made a right turn onto Panola Road. The crossing had four signs, the customary railroad crossing sign or 'crossbucks,' an octagonal, red 'stop sign,' a circular, black and yellow railroad warning sign and, a tall 'crossbucks' labeled 'Georgia Law/Stop/Unsafe RR Crossing.' All signs were on posts and visible from the roadway. Mrs. Hogan either stopped momentarily about 15 feet from the tracks, or else came to a virtual halt. Mrs. Bush testified that she saw Mrs. Hogan look right and left before she proceeded to drive forward into the path of a work-extra (unscheduled) train consisting of a locomotive and five cars. The headlights of the train were illuminated. The fireman called out a warning and the engineer immediately applied the emergency brake, but due to the close proximity of the locomotive to the crossing, it struck the right front door of the car, which was pushed ahead of the locomotive for a distance estimated at from about 1700 to about 2640 feet before coming to rest. The train's speed was estimated to be 40 to 45 m.p.h., as it entered the intersection. Mrs. Hogan's three and one-half year old daughter died shortly after the train stopped; both women suffered serious injuries and were hospitalized. The car was demolished. Mrs. Hogan has no recollection of events either immediately preceding or following the collision. The weather was clear at the time. Graphic evidence depicts no obstructions to visibility of an approaching train for about 1,200 feet up the track.
Drastic disagreement exists between witnesses called by the opposing parties as to whether the train whistle sounded prior to the collision. Mrs. Bush heard no whistle. Mrs. Brenda Coile, a friend of Mrs. Bush, testified that she lived several hundred feet from the crossing, was talking on the phone and, felt the vibrations of an approaching train, leading her to advise her telephonic correspondent that when the whistle started she would have to hang up as she couldn't hear. She kept on talking until she heard the crash and, therefore, was certain that the whistle hadn't sounded. Mrs. Lillie Jeffares, another friend of Mrs. Bush, who also lived several hundred feet from the crossing, he been doing housework and had lain down across her bed to rest, but was not asleep. She heard no train whistle, but was aroused by the sound of the collision. Contra, the four train crew members maintained the whistle was activated at the blow post and that the bell also was started. Mr. L. V. Jones, sitting in the office of a horse farm, about 1,000 feet from the crossing, heard the train's whistle blow for the crossing when it was between a half and three-quarters of a mile away and heard it continue until the train had passed the farm. He did not hear the noise of the crash. Mr. Charles Danzwith was driving a large 10-speed truck following Mrs. Hogan south on the road. He was pacing the train about abreast of the last car. He heard no whistle or bell, but doubted that he would have, as the windows of the truck's cab were up and the truck was in a gear which rendered the interior of the cab quite noisy.
The jury returned verdicts in favor of the defendants in all three cases. Held:
1. Plaintiffs complain that the trial court erred in treating three notices to produce as discovery motions and referring same to the motions' calendar, rather than ruling on them at the commencement of trial. These cases were filed on May 24, 1968. Following the filing of numerous interrogatories, motions, other pleadings and hearings, the case was scheduled for hearing on December 11, 1972. At the trial, with prospective jurors present, the trial judge discovered that the plaintiffs had filed notices to produce a few days earlier. Attorneys for the parties both indicated a desire to go to trial....
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Louisville & Nashville R. Co. v. Bush
...to trial. The jury found for the railroads in the Hogan cases, and those judgments were affirmed by this court in Hogan v. L. & N.R. Co., 130 Ga.App. 638, 204 S.E.2d 348, where a factual sketch of a voluminous transcript will be found. However, the jury returned a verdict for Mrs. Bush in t......
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Hunnicutt v. Georgia Power Co.
...135 (1966). See also Travelers Ins. Co. v. Johnson, 118 Ga.App. 616, 617(4), 164 S.E.2d 926 (1968); Hogan v. Louisville & Nashville R. Co., 130 Ga.App. 638, 640(4), 204 S.E.2d 348 (1974); Wheat St. Two, Inc. v. James C. Wise, Simpson, Aiken & Assocs., 132 Ga.App. 548, 551(4), 208 S.E.2d 359......
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