Isom v. Schettino

• Decision Date: 03 April 1973
• Docket Number: No. 2,No. 47792,47792,2
• Parties: William ISON et al. v. Genatiempo A. SCHETTINO et al
• Court: Georgia Court of Appeals

Page 89

199 S.E.2d 89

129 Ga.App. 73

William ISON et al. v. Genatiempo A. SCHETTINO et al.

No. 47792.

Court of Appeals of Georgia, Division No. 2.

April 3, 1973.

Rehearing Denied May 11, 1973.

Connerat, Dunn, Hunter, Houlihan, Maclean & Exley, E. Ormonde Hunter, Kennedy & Sognier, John G. Kennedy, Savannah, for appellants.

Lawton, Sipple & Chamlee, Julian C. Sipple, Oliver, Maner & Gray, Thomas S. Gray, Jr., George P. Donaldson, III, Savannah, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

On February 29, 1968, around midnight, four Italian seamen were riding as paying passengers in a taxicab owned and operated by Yellow Cab Company of Savannah. The taxicab collided with a locomotive of the Georgia Ports Authority at a street crossing on the property of the Authority on the outskirts of Graden City, Georgia, near Savannah. One seaman was killed and the others were injured. Separate suits were filed by the mother of the deceased seaman, the three other seamen, and by the owner of the ship on which the seamen were employed. These suits named as defendants the Yellow Cab Company, its driver, and its insurer, Globe Indemnity Company, seeking compensation for the wrongful death, and for the injuries sustained by the seamen, and for expenses incurred by the ship-owner as a result of the collision.

The defendants filed a third party complaint against Georgia Ports Authority and prayed contribution for all or part of the sums that may be adjudicated against them. The five cases were consolidated for trial; and in the course of trial Georgia Ports Authority moved for a directed verdict in its favor, which motion was granted. The whereabouts of two of the injured seamen were unknown, and upon their failing to appear at the trial, all defendants moved for a directed verdict as to them, which motions were granted.

Verdicts were returned by the jury in favor of the mother of the deceased seaman, the remaining seamen, and the shipowner. Defendants filed their combined motions for new trial and for judgment notwithstanding the verdict. Said motions were denied, and the defendants appeal. Held:

1. The direction of a verdict is proper only when there is no conflict in the evidence as to any material issue, and when the evidence introduced, with all reasonable deductions, demands a verdict. Code Ann. § 81A-150(a) (§ 50, CPA: Ga.L.1966, pp. 609, 656; 1967, pp. 226, 237, 249, 248); State Farm Mutual Auto Ins. Co. v. Snyder, 125 Ga.App. 352, 187 S.E.2d 878.

Did the facts of this case show no material issue as to the alleged negligence of the Georgia Ports Authority? Was it entitled to a directed verdict? In defendants' third party complaint the Authority is alleged to have been negligent in failing to exercise due caution and ordinary care; in failing to keep a clear lookout ahead; in failing to bring its engine to a stop when a collision appeared imminent; and in failing to reduce speed after it became apparent the taxicab would not stop for the crossing.

The evidence is in conflict as to the speed of the taxi driver in approaching the crossing. The taxi driver testified he stopped at the entrance gate of the Ports Authority (approximately 300 yards from the train crossing), started off in low gear, went immediately to high gear and then changed back to second gear to brake the car down for the crossing; that he was reducing speed, when someone in the rear seat tapped him on the head and he momentarily turned to see what was the matter, and his foot slipped off the brake and hit the gas pedal; at the time he again looked toward the road he was about 20 feet from the crossing with the train in front of him. He testified that he was driving approximately 25 miles per hour as he approached the crossing. The engineer of the locomotive testified differently, stating that the taxicab did not reduce speed as it approached the crossing, and that it was traveling from 45 to 50 miles per hour when at a distance of from 250 to 300 yards from the tracks. The engineer testified that he had reduced speed of the locomotive somewhat as it approached the crossing, and when he was about 40 feet from the crossing he realized the driver was not going to stop for the crossing and that he hit the emergency (brake) in about 35 feet. Upon impact, he did not immediately stop the locomotive but allowed it to slide a few feet forward because of the possibility of an explosion from the tanks on the engine. (It is a little difficult to reconcile his testimony here, as he had testified that the emergency brakes were applied about five feet before reaching the crossing and he never did testify that he released the emergency brakes). As to the engineer's testimony and the testimony of the taxi driver, both the trial court and this court must construe the testimony most favorably toward the party opposing the motion for directed verdict. Curry v. Durden, 103 Ga.App. 371(1), 118 S.E.2d 871.

Because the taxi driver testified that he had traveled this road many times before and was familiar with the presence of the tracks crossing the road at this point, the trial court refused to allow testimony as to whether or not there should have been markings on the pavement showing the approach to the crossing; and as to whether the crossing should have been protected by a flagman, crossing-gates, flares, or otherwise. The trial court also excluded the manual on Uniform Traffic Control Devices which shows the recommednded warning signs of a railroad as an advance warning showing a yellow disc with black crossbuck and the letters 'RR' in black, erected 350 to 770 feet in advance of every railroad crossing even though there may be other signals, gates or flagmen, except at a minor siding or spur infrequently used. The trial court also disallowed evidence as to the necessity of a flagman or signalman and refused to allow expert testimony as to the stopping distance of a taxi.

There has been a tendency by some courts to confuse the question as to warning signals at a railroad crossing. A crossbuck sign simply warns, 'This is a railroad crossing.' But a signalman, or crossing gates, or a bell, or wig-wag give an entirely different warning, to wit: 'This is a railroad crossing, and here comes a train right now approaching this crossing!' The automobile driver may be familiar with the location of the crossing, in which event a crossbuck sign is not necessary. But what is often necessary is a warning that will tell him, 'Here comes a train right now!' The appellate courts of Georgia have steadfastly held that it is for a jury to determine as to whether such warnings were necessary, and if so, what kind of warnings were necessary, the absence of which may be, by the jury, accounted negligence.

The foregoing evidence as to the failure to flag by flare (fusee), signalman, or gates which might be necessary at or near a street crossing to warn of the running of the trains should have been allowed in evidence. It is a question for the jury as to what signals or devides should be maintained at a railroad crossing. See Central of Ga. R. Co. v. Barnett, 35 Ga.App. 528, 531, 134 S.E. 126; Central of Ga. R. Co. v. Leonard, 49 Ga.App. 689(4), 176 S.E. 137; Southern R. Co. v. Garland, 76 Ga.App. 729, 743, 47 S.E.2d 93; Sylvania Central R. Co. v. Gay, 82 Ga.App. 486, 488, 61 S.E.2d 587.

Where the trial court excludes admissible and material evidence offered on behalf of plaintiff, it is error to direct a verdict against him. Thompson v. Central of Georgia R. Co., 102 Ga.App. 5(2), 115 S.E.2d 471; Fountain v. Hagan Gas, etc., Co., 140 Ga. 70(2), 78 S.E. 423; Proctor & Gamble Co. v. Blakely Oil etc., Co., 128 Ga. 606(1), 57 S.E. 879. Thus, there was in this case a jury question made by the failure of the railroad to have certain signals or gates, or flares, or flagmen (the exact kind needed to be decided by the jury), at the crossing.

But there are other pertinent provisions of law to be considered on the question of directing a verdict for the third party defendant railroad. The negligence of the taxi driver was not imputable to his passengers, and ordinarity they would be entitled to recover. But if the taxi driver's negligence was the sole cause of the collision, thus eliminating any negligence whatever-even as little as 1% of the total negligence-as to the operation of the locomotive, the Ports Authority would not be liable. Seaboard Air-Line R. v. Barrow, 18 Ga.App. 261(5), 89 S.E. 383; Andrews Taxi, etc., Co. v. McEver, 101 Ga.App. 383(5), 114 S.E.2d 145; Scholle Atlanta Corp. v. Nealy, 110 Ga.App. 775, 777, 140 S.E.2d 88, and cits.

Where one is injured by the concurring negligence of two tortfeasors, each is liable for the whole injury even though the other defendant may have contributed thereto in greater degree. Wilson v. Ray, 64 Ga.App. 540, 543, 13 S.E.2d 848. While it is not negligence per se to fail to operate a train at such speed that it may be stopped before going over a crossing, a jury question is made as to whether such failure amounts to simple negligence (not negligence per se). Atlantic C.L.R. Co. v. Bradshaw, 34 Ga.App. 360(1), 129 S.E. 304; Ga. Northern R. Co. v. Rollins, 62 Ga.App. 138, 140, 8 S.E.2d 114; Powell v. Crowell, 63 Ga.App. 890, 892, 11 S.E.2d 918. Thus another jury issue was made in this case on the question of speed of the locomotive and the ability of the engineer to stop before reaching the crossing. A railroad company, after discovering a person traveling in an automobile is about to come upon the crossing, owes to that person some special duty to exercise care to prevent injury to him at the crossing. Georgia, S.W. & G.R. Co. v. Lasseter, 39 Ga.App. 393(4), 147 S.E. 166. Who but a jury could decide whether such 'special duty' had been complied with in this case? An engineer is not entitled to assume in all cases that a person on a public crossing (or who is about to come upon a public crossing) will get off in...