Louisville & N.R. Co. v. Faust

• Decision Date: 21 May 1923
• Docket Number: 13986.
• Citation: 117 S.E. 761,30 Ga.App. 310
• Parties: LOUISVILLE & N. R. CO. ET AL. v. FAUST.
• Court: Georgia Court of Appeals

117 S.E. 761

30 Ga.App. 310

LOUISVILLE & N. R. CO. ET AL. v. FAUST.

No. 13986.

Court of Appeals of Georgia

May 21, 1923

Syllabus by the Court.

This was a suit for damage to an automobile, occasioned by a collision with the defendant's cars at a public road crossing in the city of Lexington. A judgment for $1,000 was rendered in favor of the plaintiff. The defendant excepts to the overruling of its motion for new trial. Held:

The evidence authorized, but did not demand, the finding in the plaintiff's favor.

By the provisions of the act approved August 19, 1918, it is the duty of an engineer operating a locomotive engine within the corporate limits of cities, towns, and villages to signal the approach of the train to a crossing by constantly tolling the bell of the locomotive, and it is his duty to keep and maintain a constant and vigilant lookout along the track ahead of the engine, exercising due care in controlling the movements of his train, so as to avoid doing injury to persons or property which may be on such crossing or within 50 feet of the same. It is his further duty to "observe any ordinance of such city, town, or village, which may lawfully be passed, regulating the speed at which railroad trains may be run therein." Ga. L. 1918, p. 213; Park's Code Supp. (1922) § 2677 (d). Thus, while under the present law there remain certain specified duties of the person operating the train, the nonperformance of which would constitute negligence per se, and while the engineer in thus operating his train is further required to exercise due care in order to avoid accident, the former provision of law specifically requiring that, upon the approach of a train to a crossing, the engineer should check and keep checking the speed of the train so as to stop in time should any person or thing be crossing the track, no longer obtains so as to render his failure so to do negligence as a matter of law and since questions as to what acts or conduct constitute negligence, except where expressly made so by statute, lie peculiarly within the province of the jury, the court should not attempt so to designate them. Ga. Ry. & Power Co. v Shaw, 25 Ga.App. 146, 102 S.E. 904, and cases there cited. It was therefore error for the court to charge that a failure to have the train under such management and control in approaching the crossing as would enable the engineer to bring it to a stop in case any person or thing was on or near the same amounted to negligence as a matter of law. What was said in Ocilla So. R. Co. v. McInvale, 26 Ga.App 106, 105 S.E. 451, and Ocilla So. R. Co. v. Taylor, 27 Ga.App. 733, 110 S.E. 244, is not in conflict with the ruling here made, since each of these cases, growing out of the same accident, which occurred on November 18, 1916, was tried under the law as it existed prior to the act of 1918. The reference in the Taylor Case to the act of 1918 could only have been inadvertently made.

Section 4426 of the Civil Code (1910) provides that, "if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." But "the duty resting by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the danger is impending, or the circumstances are such that an ordinarily prudent man would have reason to apprehend its existence. Failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should be reasonably apprehended, would not preclude a recovery, but would authorize a jury to diminish the damages in proportion to the fault of the person injured." Atlanta Ry. Co v. Gardner, 122 Ga. 82, 87, 49 S.E. 818, 820. See, also Comer v. Barfield, 102 Ga. 485, 489, 31 S.E. 89. Thus, in a case such as this...