Peeples v. Louisville & N.R. Co.

• Decision Date: 14 July 1927
• Docket Number: 18120.
• Citation: 139 S.E. 85,37 Ga.App. 87
• Parties: PEEPLES v. LOUISVILLE & N. R. CO.
• Court: Georgia Court of Appeals

139 S.E. 85

37 Ga.App. 87

PEEPLES v. LOUISVILLE & N. R. CO.

No. 18120.

Court of Appeals of Georgia, First Division

July 14, 1927

Syllabus by the Court.

It appearing from the plaintiff's petition that in going upon the railroad track at the crossing at which he was struck by the defendant's train he failed to exercise ordinary care for his safety, and that by such care he could have avoided the consequences to himself of the defendant's negligence the judgment sustaining the general demurrer was correct.

Error from Superior Court, Cobb County; John S. Wood, Judge.

Suit by Abe Peeples against the Louisville & Nashville Railroad Company. To review a judgment sustaining a demurrer to the petition, plaintiff brings error. Affirmed.

Mozley & Gann and H. B. Moss, all of Marietta, for plaintiff in error.

Tye Peeples & Tye, of Atlanta, and Morris, Hawkins & Wallace, of Marietta, for defendant in error.

LUKE J.

Abe Peeples sued the Louisville & Nashville Railroad Company for damages for personal injuries alleged to have been caused by the defendant's negligence in running its train against him on a public grade crossing, in Marietta, Ga. The controlling question in this case is whether or not the court correctly sustained the general demurrer and dismissed the petition.

Briefly stated, the petition set out the following case: In the city of Marietta the defendant's line of railroad and that of the Western & Atlantic Railroad, running parallel north and south, and within 7 or 8 feet of each other, cross Rose Lane street. Said crossing is a much-traveled public grade crossing, and the location of the McNeel Marble Works 8 or 10 feet east of the defendant's railroad track and about 12 or 15 feet south of said crossing prevents a person thereon from seeing the approach of a north-bound train, and makes the crossing dangerous to persons traveling thereon. When injured on June 25, 1926, the defendant was about 80 years old, but was "a man of exceptionally strong constitution." Paragraph 7 of the petition reads as follows:

"Petitioner avers that when he approached the said railroad tracks to cross the same, the track of the Western & Atlantic Railroad was blocked by a passing train, and that before the train had cleared the crossing, and in order to get across the said railroad, he stepped upon the track of said defendant, and, without any warning from said defendant and without the ringing of a bell, blowing a whistle, or giving any alarm whatever, said defendant's train traveling at from 20 to 30 miles per hour, and without any watchman at said crossing, and without any brakeman on the front end of the box car being pushed by the engine of defendant's railroad, ran into and knocked him down as aforesaid, and injuring him as will be more fully hereinafter set out."

The train blocking the crossing was traveling at about 40 miles per hour and was making a great noise. The defendant's train with the car in front of the engine, which struck the plaintiff, was going north. In addition to the acts of negligence indicated above, the petition alleged a violation of the state law "with reference to public crossings in a thickly populated community," and a violation of the speed ordinance of the city of Marietta.

The demurrer alleges that the petition shows: (a) That the plaintiff's injuries were the result of his own negligence; (b) that by the exercise of ordinary care the "plaintiff could have avoided being injured as alleged in the petition."

Notwithstanding amendments were made to other parts of the petition, paragraph 7 was neither stricken nor changed by amendment. Construing the petition more strongly against the pleader, and having particularly in mind said paragraph, it must be held, on demurrer, that the crossing was blocked by the Western & Atlantic train when the plaintiff approached it, and that he entered upon the crossing and stepped upon the defendant's track before the train had cleared the crossing.

"That no person can recover damages from a railroad company for injuries to himself or his property, where the same are caused by his own negligence, or where by ordinary care he could have avoided the consequences to himself caused by the company's negligence, are familiar declarations of our Civil Code." The foregoing quotation expresses the law as laid down in sections 2781 and 4426, Code 1910, and is from Chief Justice Fish in So. Ry. Co. v. Hogan, 131 Ga. 159, 62 S.E. 65. "A railroad track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track. See, in this connection, Comer v. Shaw, 98 Ga. 545 ; Lloyd v. R. Co., 110 Ga. 167 . This is true without regard to the place where the track is whether in the country, where pedestrains are not expected to be, or at a public road crossing, or at a street crossing, or at the stations and depots of railroad companies, where persons are expected and invited to be present. *** An ordinarily prudent person in the possession of all his faculties would not attempt to cross a railroad track at any place without using at least his sense of sight, if not that of hearing, to determine whether at the time and place he was about to cross the same there were present any of those dangers which a person of ordinary intelligence would reasonably apprehend." W. & A. R. Co. v. Ferguson, 113 Ga. 713, 39 S.E. 308, 54 L.R.A. 802. See, also, A. C. L. R. Co. v. Fulford, 159 Ga. 812, 127 S.E. 274; Harris v. So. Ry. Co., 129 Ga. 388 (2), 58 S.E. 873. "If, when the defendant's negligence was discovered or when in the exercise of ordinary care it could have been discovered, the use by the decedent of his senses of sight and of hearing in an ordinarily diligent way could have prevented the casualty from occurring, the plaintiff cannot recover." Moore v. S. A. L. Ry. Co., 30 Ga.App. 466 (3), 118 S.E. 471. "(1) If a homicide occurs at a place upon the track of a railway company, where it was the duty of the servants of the company to anticipate the presence of persons on the track, and their failure to so anticipate the presence of others...