Louisville & N.R. Co. v. Stafford

• Decision Date: 18 November 1916
• Docket Number: 132.
• Parties: LOUISVILLE & N. R. CO. v. STAFFORD.
• Court: Georgia Supreme Court

91 S.E. 29

146 Ga. 206

LOUISVILLE & N. R. CO. v. STAFFORD.

No. 132.

Supreme Court of Georgia

November 18, 1916

Syllabus by the Court.

In an action against a railroad company for damages from injuries to an automobile and to the person who was operating it where it appeared that the injury occurred on a public crossing, and that at the time of the injury the plaintiff was driving his car in violation of the statute in regard to running automobiles over railroad crossings, and that the defendant was violating the statute and a city ordinance in regard to running trains over public crossings within the city, it was not erroneous to refuse to charge the jury, upon request: "If you find from the evidence in this case that the plaintiff did not have his automobile under control or was operating it at a rate of speed greater than six miles per hour, at the time he approached the railroad crossing then I charge you that in either event he would not be in the exercise of ordinary care for his safety, and would not be entitled to recover in this case, and your verdict would be for the defendant."

The evidence was sufficient to authorize the verdict for the plaintiff.

Fish C.J., and Beck, J., dissenting.

Action by I. S. Stafford against the Louisville & Nashville Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Where plaintiff was violating statute regulating speed of motor vehicles, and defendant railroad was violating statute and ordinance regulating speed of its trains, requested instruction that if plaintiff was operating his motor car at speed in excess of that allowed by law, he could not recover, held properly refused as invading the province of the jury.

Stafford brought suit against the Louisville & Nashville Railroad Company, for damages on account of injuries to his person and to his automobile, caused by a collision at a public street crossing in Canton, Ga. The petition alleged that the crossing was at street grade in a very populous section of that city, and was used constantly by pedestrians as well as drivers of vehicles. On the morning of the 11th of May, 1914, as the plaintiff was just upon and attempting to go over this crossing, the defendant's passenger train, without warning or notice, struck his automobile, causing the injuries. He alleged the train was then running at the rate of 30 to 40 miles per hour, in violation of the laws of Georgia, and the ordinances of the city of Canton; that it was the duty of the defendant to have its train under control, and not to run at a greater rate of speed than 5 miles per hour, and that its servants should have warned the plaintiff of the approach of the train, by tolling of bell or by other means, and that they were negligent in failing to do either. On the trial the plaintiff testified, among other things, as follows:

"As I approached the crossing I was running the machine from 8 to 10 miles per hour. I didn't have any notice or warning of the approach of any train, and there wasn't any ringing of the bell, or sounding of a gong given as the train approached the crossing, and as I approached it. In approaching the crossing coming back into Canton, there are houses and trees built up there near the track, and it cuts the view off from seeing the train until you get in from 15 to 18 feet of the track. * * * I was in 15 to 18 feet of the track when I first saw the train, and when I saw it I put on my brakes and turned my car to the right, to keep from going between the rails. I thought by turning to the right, I would turn sideways to the track while I was stopping, and possibly he would miss me, in turning while I was stopping. When I saw the train it was making from 25 to 30 miles per hour, and he was giving no signal in the ringing of the bell after I came in sight of the train. I put my brakes on and stopped the car in an effort to keep the train from hitting me and the automobile. My brakes and car were in good working order. I turned the car to the right. I could not have gone on across and kept it from hitting me, because I would have been just between the rails. * * * When I saw the train, I was in 15 to 18 feet of the track, going between 8 and 10 miles. The train was making between 25 and 30 miles. * * * There is a slight grade upon the railroad crossing--going to the crossing. * * * On a slightly upgrade such as that was there, I could stop the car on a rise in 25 or 30 feet. No, I would not have to run 25 or 30 feet at a 10-mile speed to stop the car. I could stop in 15 feet. I don't think I could stop it in 10 feet. I could stop in 5 or 6 feet, running 5 miles per hour. Running 6 miles per hour on the same grade, I suppose it would be about the same. * * * I was running about 10 or 12 miles that morning. Eight or 10 miles was what

I was running. I don't think I was running over 10 miles at the outside. Ten miles per hour is a slow speed for a Ford. * * * When I got in a distance of from 15 to 18 feet of the track, I saw

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