Montgomery v. Southern Ry. Co

• Decision Date: 03 December 1948
• Docket Number: Nos. 32236, 32246.,s. 32236, 32246.
• Citation: 51 S.E.2d. 66
• Parties: MONTGOMERY. v. SOUTHERN RY. CO. SOUTHERN RY. CO. v. MONTGOMERY.
• Court: Georgia Court of Appeals

51 S.E.2d. 66

MONTGOMERY.

v.SOUTHERN RY. CO.

SOUTHERN RY. CO.

v.MONTGOMERY.

Nos. 32236, 32246.

Court of Appeals of Georgia,

Division No. 1.

Dec. 3, 1948.

Rehearing Denied Dec. 15, 1948.

Syllabus by the Court.

1. (a) The allegations of the petition as contained in sub-paragraphs 17(b) and (c) do not constitute negligence per se, but may constitute negligence as a matter of fact, if the jury so determines.

(b) The trial court erred in overruling the demurrer to sub-paragraphs 17(b) and (c) of the plaintiff's petition only insofar as this ruling had the effect of holding that these allegations, relating to the failure of the engineer to exercise due caution in controlling the movements of the train and in checking the speed of the train while approaching the crossing, constituted negligence per se instead of negligence as a matter of fact.

(c) Whether or not the allegations of negligence on the part of the defendant as contained in paragraph 17 of the petition had any causal connection with the death of Mack Montgomery should be determined by a jury.

(d) Except in plain and undisputable cases, this court cannot say as a matter of law that certain alleged acts of negligence were not the proximate cause of an injury or death.

2. (a) The evidence must be taken most strongly in favor of the plaintiff in passing on a nonsuit, and if there is any evidence tending to sustain the plaintiff's action, or where the jury can fairly infer from the evidence a statement of facts favorable to the plaintiff, a nonsuit should not be granted.

(b) The dependency contemplated by Code, § 105-1309 is a dependency in fact, actually in existence at the time of the death of the person making the contribution.

(c) Under the evidence in this case and the law applicable thereto, contribution and dependency were questions of fact for a jury to pass upon, and it was error for the trial judge to grant a nonsuit.

Error from Superior Court, Gordon County; J. H. Paschall, Judge.

Action by Ella Montgomery, administratrix of the estate of Mack Montgomery, deceased, against the Southern Railway Company to recover for the deceased's death. To review the judgment, the plaintiff brings error, and the defendant brings cross-error.

Judgment reversed on main bill of exceptions, and judgment reversed in part on the cross-bill.

Lanham, Parker & Clary and Maddox & Maddox, all of Rome, for plaintiff in error.

J. G. B. Erwin, of Calhoun, and R. Carter Pittman, of Dalton, for defendant in error.

SUTTON, Chief Judge.

Ella Montgomery, administratrix of the estate of Mack Montgomery, sued the Southern Railway Company in Gordon Superior Court, for damages for herself as an individual, under the provisions of Code, § 105-1309, on account of the death of Mack Montgomery, upon whom she alleged she was dependent and who contributed to her support, and who was killed when a train operated by defendant struck the truck which he was driving.

Paragraph 17 of the plaintiff's petition is as follows: "Petitioner shows that said defendant, its agents and employees, were guilty of negligence per se in that: (a) That while approaching said crossing and within the corporate limits of Plainville, the bell on said locomotive was not constantly tolled and was not ringing while approaching said crossing and while actually traversing the same, (b) That the defendant's engineer operating the engine and pulling said train did not exercise due caution in so controlling the movements of said train so as to avoid doing injury to persons who were on said crossing, (c) That defendant's engineer and agent did not reduce the speed of said locomotive and train while approaching said crossing so that the same might be stopped before reaching said crossing or striking a person thereon." Defendant demurred specially to various parts of the petition, including paragraph 17, the demurrer to this paragraph being "(5) Defendant demurs specially to paragraph 17 of the petition and each and every sub-paragraph thereof because the allegations thereof are irrelevant and immaterial, to any cause sought to be alleged in the petition, it not appearing from said allegations or any other allegations, of the petition that the alleged acts of the defendant had any proximate relationship to the death of the deceased." Certain amendments were made to the petition before these demurrers were urged, and defendant, conceding that the amendments had the effect of revitalizing the allegations of acts of negligence in the petition, further demurred to the petition as amended, as follows: "We demur to the allegations appearing in paragraph 17(b) and (c) of the petition because there are no statutes imposing upon an engineer the duties set forth therein." On the original demurrers the court ruled: "After amendment by plaintiff this day and after defendant re-urged the within demurrer, it is considered, ordered and adjudged that grounds 1, 2, 3(a), 4, 5, and 6 are overruled. Ground 3(b) is sustained." The demurrer to subparagraphs 17(b) and (c) was overruled. Exceptions pendente lite to the rulings on the demurrers were duly filed by the defendant, and error is assigned on these rulings in a cross bill of exceptions now before this court. However, all assignments of error have been abandoned except those relating to paragraphs 17 and 17(b) and (c) of the plaintiff's petition.

The case proceeded to trial before a jury, and Ella Montgomery testified to the effect that: She was the administratrix of the estate of Mack Montgomery, her brother, who had no widow or child surviving, and whose parents pre-deceased him. At the time of his death in 1945 she was living in the house with him in Rome, Georgia. This house belonged to the estate of their father and mother. Two unmarried sisters taught school in Calhoun, Georgia, and came home on weekends, and another unmarried sister lived in Ohio. She and her brother were the only people who regularly occupied the home. At the time her brother was killed and for some time prior thereto, in fact since 1930, she had done no work of any kind except look after the house for her brother, and had no means of support, except what he had given her. He gave her from $13 to $15 each week, depending on what he made, and this arrangement had been in effect since the death of their mother in 1930, at which time she was the only one of his sisters who was living at home and her brother asked her to stay at home and keep house for him and give up her work as a nurse, and it appears that she agreed to this arrangement. Her brotherbought all the groceries and paid all the household expenses, and the amount he gave her each week of $13 to $15 was free and clear above these expenses. She had been a trained nurse since 1917, and prior to the death of her mother had engaged in this work. On her last case she received $35 per week. At the time of her brother's death she was physically and otherwise able to engage in this work, and during the war and prior to her brother's death she had refused to accept employment of this kind. She could have earned as much as her brother gave her each week as a domestic servant, and her services were worth more than her brother gave her. The only reason she was not employed in a gainful occupation at the time of her brother's death was because of maintaining a home for him in accordance with the arrangement she and her brother had made after their mother's death.

After the introduction of other evidence tending to sustain the other features of the plaintiff's case, defendant moved for a nonsuit. The trial judge ruled that "a motion having been...