Mann v. Cent. Of Ga. Ry. Co.*

• Decision Date: 29 August 1931
• Docket Number: No. 20855.,20855.
• Parties: MANN v. CENTRAL OF GEORGIA RY. CO.*
• Court: Georgia Court of Appeals

43 Ga.App. 708

160 S.E. 131

MANN

v.CENTRAL OF GEORGIA RY. CO.^*

No. 20855.

Court of Appeals of Georgia,

Division No. 2.

Aug. 29, 1931.

Syllabus by the Court.

In this action against a railway company to recover damages for the homicide of the plaintiff's son, occasioned by a collision between the automobile in which he was riding and one of the box cars of a train of the defendant which was standing at rest upon a public grade crossing, it cannot be said as a matter of law that the petition failed to show negligence on the part of the defendant, nor that the decedent, who was driving the automobile, was so negligent or wanting in care as to prevent a recovery. The petition set forth a cause of action, and the court erred in sustaining the general demurrer thereto.

Additional Syllabus by Editorial Staff.

JENKINS, P. J., dissenting.

Error from City Court of Newman; W. L. Stallings, Judge.

Action by Mrs. O. S. Mann against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error.

Reversed.

Mrs. O. S. Mann brought suit against Central of Georgia Railway Company for the alleged negligent homicide of her son in the manner hereinafter stated. The court below sustained a general demurrer and dismissed the petition, and the plaintiff excepted.

The petition alleged that the plaintiff's son, O. S. Mann, Jr., age 16, was driving a truck at night along Clark street in the town of Senoia, Ga., when he ran against a standing box car which with other cars of a freight train had been left upon the railroad track so as to block the crossing, and that the truck became fastened to the freight car and the decedent imprisoned in its cab, and before he could extricate himself the engine, which had for a time been detached, was reconnected, and the train pulled out, dragging the truck for some distance and killing the plaintiff's son.

The petition alleged that Clark street was a much-traveled thoroughfare, and the train of cars was allowed to stand upon the crossing, contrary to certain pleaded ordinances of the town of Senoia, and in such manner and for such length of time as unreasonably to interfere with the safe use of the highway; that the engine had been disconnected and carried to a distant point, and that in the meantime the freight cars were left as a bare obstruction across the street, unlighted, unattended, and with no warning whatsoever to travelers. The track was the main line, and was remote from any station, side track, or yards, and there was no reason to anticipate anything other than a moving train at this point. The particular train was an extra, and the decedent did not know of its presence until hewas immediately upon it. The track here was in a sort of ravine, and, because of a curve and a descent in the street and an embankment on one side he could not see the cars until he was so close as to be unable to stop the heavily loaded truck before the collision, although, being acquainted with the street and the location of the track, he was keeping a lookout and traveling at a speed of only 15 miles per hour. Moreover, the decedent stopped the truck at the summit of the hill, a short distance from the crossing, and from that point he could have seen and heard an approaching or moving train. "There was no reason for petitioner's son to anticipate the presence of a box car parked at said place."

The petition further alleged that, if the engine had not been reconnected and the train carelessly moved, the decedent would have escaped in safety, but that, while he was fast in the cab, the engine was brought back to the cars and the train withdrew, carrying the attached truck along with it for several yards, after which the truck fell into a ditch and was struck by every passing freight car until the decedent was pounded to death. Before the train thus pulled out, the decedent and a man named Gates, who happened to be upon the scene, were calling loudly to the employees to hold the train, in order that the decedent might escape, and at the same time the horn upon the truck was constantly blowing. These calls and the noise of the horn could have been heard at least 300 yards, and the defendant's servants and employees were negligent in not hearing and heeding the same.

The petition averred that the defendant was negligent in the following, among other, particulars:

"1. In placing described obstruction across the public street in violation of ordinance of town of Senoia, Georgia.

"2. In permitting described box car to remain across said public street in violation of the ordinance of Senoia, Georgia.

"3. In parking and leaving across a public highway on a dark night an unlighted obstruction.

"4. In placing and parking across described highway at time and place alleged, described obstruction.

"5. In leaving unlighted and unattended a freight car and a line of freight cars parked across a highway, and in leaving and having no member of the crew of the train to remain with and guard the same so as to prevent injury to travelers along the public highway.

"0. In illegally and unlawfully obstructing a public highway in such a manner as to imperil travelers on said highway and to prevent your petitioner's son traveling along said highway in safety. * * *

"12. In having and maintaining a public crossing within the limits of a populous city and over a populous and much used street in condition of described crossing, to wit, with a large red embankment extending up to the roadway on the west side, which prevented the lights of the auto truck from lighting the crossing and illuminating a box car parked thereon, with a deep ditch on each side of the roadway, and in a dark valley at the foot of steep hills, without providing said crossing with any light or guard, bell, or device to warn travelers along said highway of box ears parked across same."

It was alleged also that the plaintiff's son was in the exercise of all ordinary care and diligence, and in no way contributed to the injuries which resulted in his death. The other averments related to the plaintiff's dependency and the contribution made by the decedent to her support, and gave facts to illustrate the value of his life and the amount of the damage.

Stanford Arnold and Chas. H. Arnall, both of Newnan, for plaintiff in error.

Cleveland, Goodrich & Cleveland, of Griffin, and Garland M. Jones and A. Sidney Camp, both of Newnan, for defendant in error.

BELL, J. (after stating the foregoing facts).

Every case of this sort must, in the last analysis, be determined upon its own facts, and we think the instant petition was not fatally defective as failing to state a cause of action. It sufficiently avers negligence on the part of the defendant, and does not as a matter of law disclose such negligence or want of care on the part of the decedent as to bar a recovery.

The defendant, of course, had the right to use its tracks at this crossing, and would not be guilty of negligence in the mere act of stopping its cars for such length of time as might be reasonably necessary in the conduct of its business, but it still should comply with any valid municipal ordinances or other lawful regulations enacted for the public safety; and, regardless of prescribed regulations, it might be true that in particular circumstances due care for the safety of travelers would require the placing of a guard, light, or other warning at a proper point for the purpose of giving notice for the time being that the street was obstructed. Central of Georgia Ry. Co. v. Barnett, 35 Ga. App. 528 (la), 134 S. E. 126.

But we deem it unnecessary to discuss at length any question as to the negligence of the defendant, since counsel on both sides have directed their arguments mainly to the question of whether it appeared that the decedent's death was due to his own carelessness in failing to observe the freight car in time to avoid the collision. Nor do we consider as relevant, on the question of the defendant's fault, any of those allegations which weremade for the purpose of showing negligence on the part of the defendant in moving the train after the truck had become fastened to the freight car. There is nothing to indicate that the employees of the railway company should have expected such a condition, or that they had actual knowledge thereof. It is true the petition alleges that the decedent and the man Gates were each calling loudly, and also that the horn upon the truck was making a noise which could have been heard for some distance, but it is not averred that any one of these alarms was in fact heard, or, if so, that its meaning was understood or appreciated as indicating danger to a traveler upon the highway, resulting from the impending movement of the train. Such contact between a truck and a freight car was so unusual that the servants of the company were not required to anticipate it, and before the plaintiff could treat as negligent the subsequent happenings, it would be necessary to show actual knowledge of...