Louisville & N. R. Co v. Athon

• Decision Date: 05 December 1936
• Docket Number: No. 25809.,25809.
• Citation: 54 Ga.App. 787,189 S.E. 563
• Court: Georgia Court of Appeals
• Parties: LOUISVILLE & N. R. CO. et al. v. ATHON et al.

54 Ga.App. 787

189 S.E. 563

LOUISVILLE & N. R. CO. et al.

v.ATHON et al.

No. 25809.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1936.

Syllabus by Editorial Staff.

STEPHENS, J., dissenting in part.

Error from Superior Court, Baldwin County; C. J. Perryman, Judge.

Suit by I. P. Athon and others against the Louisville & Nashville Railroad Company and others. Judgment for plaintiffs, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

Hints & Carpenter, of Milledgeville, and Jones, Johnston, Russell & Sparks, of Macon, for plaintiffs in error.

Sibley & Allen, C. A. Giles and Marion Ennis, all of Milledgeville, and Brandon, HyndS & Tindall, of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

STEPHENS, Judge.

1. Under the ruling of this court in Louisville & Nashville Railroad Co. v. Ellis, 54 Ga.App. ----, 189 S.E. 559, decided October 19, 1936, the petition set out a cause of action and the court did not err in overruling the general demurrer.

2. A person may, due to the circumstances, be guilty of negligence as a matter of fact while in the performance of an act which he is legally authorized to do and from the doing of which he is not prevented by law. Although a railroad company, under the laws of the State and the ordinances of a city, may possess the legal right to maintain a railroad track and operate its trains along a public street of the city, it may nevertheless be guilty of negligence as a matter of fact as respects a person crossing the street and the defendant's railroad track along an intersecting street where, in the use of its track, the railroad company has left a railroad car thereon at the intersection of the streets in such a position as to obscure the vision of a person traveling along the intersecting street, and to render it impossible for him to see an automobile truck approaching the crossing from the other side of the intervening railroad car of the railroad company. On the trial of a suit against a railroad company to recover for personal injuries alleged to have been received as a result of a collision at intersecting streets between the automobile of the plaintiff and an automobile truck, as a result of the alleged negligence of the defendant railroad company, whose track occupied one of the intersecting streets, in stationing its train of cars on the street at the crossing insuch a position that the truck, in approaching the intersection of the streets, was obscured from the view of the operator of the automobile in which the plaintiff was riding when approaching the intersection from the other side, notwithstanding the railroad track and train of cars were lawfully in the street, it was nevertheless a question of fact for the jury whether the railroad company was negligent in leaving its train of cars in the position alleged. A charge of the court that the act of the railroad company in leaving its train of cars in the street as indicated was a lawful act, but that it was a question of fact for the jury whether the defendant's train was operated or switched or placed on the tracks in a negligent manner, was not error. Thus, a request to charge that the railroad company had the legal right to operate its trains in a street, and that the railroad company, in operating its train by placing it on the track in the manner alleged, would not be negligent, and would not be acting unlawfully, was, in that it withdrew from the jury the question of the defendant's negligence in placing the train on the track under the conditions alleged, not a statement of the law applicable to the case. The court did not err in giving the charge excepted to, or in refusing to charge as requested.

3. Although there may not have been brought to the attention of the jury any ordinance of the City of Milledgeville or any statute of the State of Georgia relative to the manner in which the defendant might have operated, switched, or placed the trains on its track in the street of the city, a charge which instructed the jury that it was a question of fact for their determination whether the defendant's...