Pate v. Georgia Southern & Florida Ry. Co.

• Decision Date: 19 June 1990
• Docket Number: No. A90A0985,A90A0985
• Citation: 395 S.E.2d 604,196 Ga.App. 211
• Parties: PATE v. GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY.
• Court: Georgia Court of Appeals

Page 604

395 S.E.2d 604

196 Ga.App. 211

PATE v. GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY.

No. A90A0985.

Court of Appeals of Georgia.

June 19, 1990.

Rehearing Denied July 3, 1990.

P. Dewey Gill, Robert H. Malone III, Macon, for appellant.

J. Steven Stewart, Macon, for appellee.

BIRDSONG, Judge.

Appellant, Michael A. Pate, appeals the order of the trial court granting summary judgment to appellee railroad.

Appellant and his passenger, Spires, were en route to visit some friends when appellant's vehicle struck appellee's train at the 117th car at a railroad crossing. The evidence is in conflict whether the train was moving or stationary at the time; appellant asserts the train was stopped or he would have heard it.

It was about 1:15 a.m. and cloudy. It had rained two or three hours earlier, and appellant testified in his deposition that the pavement was still wet. There was no fog, and there were no other atmospheric conditions which would affect a driver's visibility. Appellee had not driven down the road before. He was unsure whether he was driving using his high or low beams, but believed he probably was using high beams. He testified he was traveling at 40-45 miles per hour.

Before approaching the railroad crossing there are three rolling hills but no curves or embankments that would block the view of the crossing. The railroad crossing lies on the road at the bottom of the third hill; the road from the third hill to the tracks is straight and a relatively level downgrade. By appellant's calculations, it is at least one-tenth of a mile from the top of the third hill to the track. In daylight a train can be seen at the crossing at a distance of approximately 1,100 feet; but in the evening there are no street lights or secondary lights once a driver has crested the third hill. Shrubbery has been cleared from the area since the accident, and the whole train track can now be seen.

At a distance of approximately 579 feet from the crossing there was a reflectorized orange railroad warning sign. Appellant makes no claim that this sign either was not visible from the road or was not in good condition. Appellant made a judicial admission in his deposition that he did not see this sign, and that if he had seen it, he would have recognized the sign, realized there were tracks ahead, slowed-down, and stopped. The only reason appellant advances as to why he did not see this warning sign is that he and the passenger were talking.

The next warning sign painted in white paint on the right-lane side of the road was approximately 345 feet from the crossing; this sign was about 52 feet in length. Appellant admits that he did not see this sign and asserts that because it was dark and the pavement was still wet from the rain, "everything was ... reflecting off the road."

At a distance of approximately 60-75 feet from the crossing, there was a sign on the right-lane side of the road, since removed, that read "Georgia Law Stop Unsafe R. R. Crossing." Appellant contends this sign was so old, faded, and full of gunshot holes that appellee concedes it might not have been visible that night. Appellant did not see this sign.

At 43 feet from the crossing, there was a reflectorized red stop sign on the right-lane side. Appellant did not see this sign before the collision.

A white stop bar also was painted across the right lane approximately the same distance from the track as the stop sign, and approximately 30 feet from the track, there was a standard, white, reflectorized, railroad crossbuck sign. Appellant did not see these signs before the collision.

The record also contains a series of photographs showing a train visible at the crossing, during daylight hours, at various distances ranging from 100 to 1,100 feet.

Although appellant was unsure whether his vehicle left any skid marks, the uncontradicted evidence of record reflects that his vehicle left approximately 69 feet of skid marks from the point on the road where the marks started to the point where appellant's car left the road. The vehicle then traveled, at a slight angle, from the point where it left the road for approximately 42 feet more, crossing a culvert and going airborne before hitting the train; traveling an approximate distance, not counting the distance traveled during perception, recognition and reaction time, of 111 feet.

Although appellant testified in his deposition that there were small trees and high shrubbery near the tracks and that the land has been cleared since the collision, he did not testify that this foliage prevented him from seeing the crossing on the evening of the collision.

At the time of the collision, appellant admits in judicio, by way of his deposition testimony, that he had turned his head toward and was talking with his passenger. The passenger suddenly hollered "[t]here's a train." Appellant claims that although he saw only the shadow of the train, and not the train itself, he locked the brakes. He further testified that "when [he] got close enough for [his] headlights to hit [the train], [he] turned to the left to keep from hitting it"; and that he "didn't actually see [the] train until [his] headlights hit it." (Emphasis supplied.)

Appellant opined that the reason for the accident was because the train was motionless on the tracks, it was dark at the crossing, and the railroad had not placed any type of flashing lights at the crossing. Held:

1. On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the case sub judice, movant is the defendant, he has the additional burden of piercing the plaintiff's pleadings and affirmatively negating one or more essential elements of the complaint. In ruling upon a motion for summary judgment, the benefit of all reasonable doubt should be given to the opposing party, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843.

2. At the onset, we note that appellant first testified unequivocally in his deposition that in getting directions to his friend's house "[t]hey told me to cross the railroad tracks and go down to the dirt road on the right." And when asked, immediately thereafter, if he had been told to "[c]ross the railroad tracks and the [the location] would be the first dirt road to the right," appellant gave an affirmative reply. But after being confronted with the fact that he then knew about the tracks that night, appellant apparently attempted to recant this testimony. Thereafter he testified, "I'm not saying they definitely told me, because I don't remember them telling me," "I'm not going to say they did," and that he "didn't remember there [were] railroad tracks there."

We find that, as to the issue whether appellant had prior knowledge of the existence of railroad tracks on the route he was traveling before he would reach his destination, appellant's testimony is contradictory within the meaning of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27(2), 343 S.E.2d 680. In a summary judgment case, where either a movant's or a respondent's explanation for a contradiction in his evidence is determined to be unreasonable (or no explanation is presented at all), the court must eliminate the favorable portions of the contradictory testimony as it then stands, and construe the evidence as to that issue in favor of the other party. Prophecy Corp., supra; Gentile v. Miller,...