Louisville & N.R. Co. v. Lowe

• Decision Date: 24 January 1957
• Docket Number: No. 1,No. 36468,36468,1
• Citation: 96 S.E.2d 643,95 Ga.App. 8
• Court: Georgia Court of Appeals
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v. L. W. LOWE

Page 643

96 S.E.2d 643

95 Ga.App. 8

LOUISVILLE & NASHVILLE RAILROAD COMPANY et al. v. L. W. LOWE.

No. 36468.

Court of Appeals of Georgia, Division No. 1.

Jan. 24, 1957.

Syllabus by the Court

The trial judge did not err in overruling the general demurrer to the petition.

L. W. Lowe filed an action in Jones Superior Court against the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company, lessees of the Georgia Railroad & Banking Company, for damages arising out of the killing by the defendant' train of certain cows belonging to the plaintiff. The petition alleged in substance: that on November 25, 1954, the defendants were operating a train running from Macon toward the town of James, Georgia, 'on said tracks at a point approximately two miles in a westerly direction from the town of James' and 'running in an easterly direction from Macon'; that at the scene of the acts complained of the tracks were located on a long, narrow and high fill; that the tracks, however, were straight, affording employees of defendants opportunity to see far ahead and thus to see plaintiff's cattle on the tracks for more than half a mile before reaching them; that because of the nature of the terrain traversed by said tracks at the locality named, petitioner's cattle could not have gotten off the tracks without tumbling down a steep embankment; that before striking the cattle the train sounded loud blasts at long intervals and at the time the cattle were struck they were running in a direction opposite the train and thus the train had ample time to slow down or stop to permit the cattle to get off the tracks without injury but failed to do so and by reason of said failure to exercise ordinary care four of said cattle were killed, and another injured, the said acts amounting to carelessness and wanton misconduct; and that the acts of negligence alleged were specifically as follows: (a) by omitting to exercise ordinary care and diligence in avoiding a collision with the cattle, (b) in omitting to control the train, by slowing or stopping it, after the cattle were seen, to avoid striking them, and (c) by striking the cattle deliberately when the same could have been avoided.

The defendants filed a general demurrer to the petition which was overruled and they excepted.

Erwin Sibley, Milledgeville, for plaintiffs in error.

J. Pierce Anderson, Gray, for defendant in error.

QUILLIAN, Judge.

1. The defendants insist the petition is contradictory in that it alleged the train was traveling in both an easterly and westerly direction. This contention is not well founded because the petition alleged the defendants were 'operating a train on said tracks at a point approximately two miles in a westerly direction from the Town...