Padgett v. Central of Georgia Ry. Co.

• Decision Date: 06 February 1957
• Docket Number: No. 36543,No. 2,36543,2
• Citation: 96 S.E.2d 658,95 Ga.App. 96
• Parties: J. C. PADGETT v. CENTRAL OF GEORGIA RAILWAY COMPANY
• Court: Georgia Court of Appeals

Page 658

96 S.E.2d 658

95 Ga.App. 96

J. C. PADGETT v. CENTRAL OF GEORGIA RAILWAY COMPANY.

No. 36543.

Court of Appeals of Georgia, Division No. 2.

Feb. 6, 1957.

Syllabus by the Court.

The plaintiff's petition seeking damages for injuries received by reason of a collision between the automobile he was driving and a standing freight train in the nighttime alleged facts sufficient to predicate negligence against the defendant without at the same time showing as a matter of law that the plaintiff was barred from recovery by his own negligence or by his failure to exercise ordinary care for his own safety.

J. C. Padgett filed an action for damages in the Superior Court of Richmond County resulting from a collision between the automobile which he was driving and a standing boxcar of a train belonging to the defendant Central of Georgia Railway Co. The trial court sustained a general demurrer to the petition, and the exception is to this ruling.

Isaac S. Peebles, Jr., Augusta, for plaintiff in error.

Hull, Willingham, Towill & Norman, Robert C. Norman, Augusta, for defendant in error.

TOWNSEND, Judge.

The petition alleges in substance that the Gordon superhighway on which the plaintiff was traveling goes over a bridge in the area in question and gradually curves downgrade and across two tracks of the defendant railroad; that the tracks are about 500 yards from the bridge; that due to the curve the boxcars on the railroad tracks, which are level with the pavement, can first be seen in the daylight at a distance of 100 yards from the crossing, but the plaintiff was proceeding at night with impaired visibility due to the presence of shadows and the 'fact that the pavement was black and the boxcars were of a dark color, and both blended together,' because of which facts, at that time and place, the presence of boxcars standing across the highway could not be seen until the driver was within 180 feet of them; that when he reached a point 180 feet away he immediately applied his brakes, but the new asphalt pavement was slippery and the road was downgrade and because of these facts he was unable to stop before colliding with the boxcars.

(a) It is further alleged that the defendant had, unknown to the plaintiff, parked a train with several freight cars across the second track; that the superhighway in question is one of the most heavily traveled in the State, but the defendant negligently failed to have a flagman or any kind of light, danger signal or warning indicating the train was across the highway, and that this was the proximate cause of the injuries received. It is well settled that merely blocking a public crossing is not actionable negligence, but that it may be so to block such a crossing without giving warning that it is so doing where some reason appears which 'required the railroad to provide one or more of the extraordinary precautions set forth in the petition.' Bassett v. Callaway, 72 Ga.App. 97, 33 S.E.2d 112, 114; Atlantic Coast Line R. Co. v. Coxwell, 93 Ga.App. 159(11), 169, 91 S.E.2d 135; Atlantic Coast Line R. Co. v. Marshall, 89 Ga.App. 740(2), 81 S.E.2d 228. The petition alleges the further facts that the new asphalt roadway is slippery and downgrade and its condition prevents the driver of an automobile from stopping within 180 feet, which facts were well known to the defendant. This court cannot take judicial notice that the new Gordon superhighway is not slippery on the basis that new asphalt is not slippery, when the petition alleges that it is slippery. The condition of the road is a matter for the jury, not this court, to decide, and the contention of the defendant in error that these alleged facts should as a matter of law be held untrue or insufficient to charge the railway...