Powell v. Smith

• Decision Date: 11 March 1944
• Docket Number: 30212.
• Citation: 29 S.E.2d 521,70 Ga.App. 754
• Parties: POWELL et al. v. SMITH.
• Court: Georgia Court of Appeals

29 S.E.2d 521

70 Ga.App. 754

POWELL et al. v. SMITH.

No. 30212.

Court of Appeals of Georgia, Division No. 1.

March 11, 1944

Z B. Rogers, of Elberton, and John B. Gamble, of Athens, for plaintiffs in error.

Robt. M. Heard and J. T. Sisk, both of Elberton, for defendant in error.

MACINTYRE Judge.

This was a suit brought by Mrs. Dewitt T. Smith against L. R Powell, Jr., and Henry W. Anderson, as receivers of the Seaboard Air Line Railway Company. She alleged in her petition that on the "_____ day of ______, 1942," her husband, Dewitt T. Smith, while attempting to drive a pickup truck across the railroad tracks at a private crossing, was struck and killed by a train operated by the defendants; that said private crossing was on a "private road or way that had been in constant and uninterrupted use by the people in its neighborhood, as a private road for more than twenty years; that it had been so recognized by the railroad company and the defendants and was maintained by them at the point of its intersection with said railway tracks." It was further alleged: "That on said occasion, and prior to the homicide of the said Dewitt T Smith, he had been to the aforesaid house of Snooks Martin to deliver a pig; that after delivering said pig, the said Dewitt T. Smith, who was seated on the left-hand side of the seat of said truck, drove said truck along the road leading from said house to the public road, on the opposite side of the said railroad tracks; that immediately after leaving the yard of said house, the said private road runs south and parallel with said railroad tracks for a distance of about ________ feet, where it makes a sharp bend to the right and up a sharp incline to cross said railroad tracks; that the said Dewitt T. Smith, in driving his said truck along said private road, had his back to the north, the direction from which the train which caused his death was approaching said crossing; that the said automotive truck had an enclosed cab on it with a rear view glass just above the back of the seat; that said private road, after leaving the yard of the aforesaid house, goes sharply down grade, until it reaches the point where it curves to the right to cross said tracks; that at the point where said private road begins to curve to cross said tracks there is located a small bridge over a drain ditch; that immediately in front of the aforesaid house, said railway tracks, pass through a cut and that the aforesaid house is located on a rise which prevents any person travelling said road from being able to see the aforesaid railway tracks to the north, until the curve in said private road near the railroad tracks is reached; that said house is geographically located on the south side of said railway tracks, but, in railway parlance, [it is located] on the east side of said railway tracks; that said railway tracks at the aforesaid point run approximately east and west, but, in railway parlance, [they] run north and south. Therefore, said house and rise are located on the left-hand side of said railway tracks, coming from Middleton toward Elberton, Georgia;" that "the agents, servants, and employees of the defendants in charge of and operating the locomotive pulling said train had an unobstructed view of the said Dewitt T. Smith and the automotive truck he was driving for approximately one-fourth of a mile before reaching the point of contact with said truck, and, in the exercise of ordinary care and diligence, should have seen him and said truck in ample time, by the exercise of ordinary care and diligence, to have avoided the collision with said truck and the homicide of the said Dewitt T. Smith; that the agents, servants, and employees of the defendants, in charge of said locomotive engine drawing said train, had a much better opportunity to see the said Dewitt T. Smith approaching or upon said crossing than the said Dewitt T. Smith had of seeing the approach of said train to said crossing for the reason that said agents, servants, and employees of defendants were in an elevated position in the cab of said engine and had a much more extended view of said crossing of said road, and of the said Dewitt T. Smith and his truck, than the said Dewitt T. Smith had of said railway tracks and any locomotive and train that might be approaching same; that the agents, servants, and employees of the defendants operating and in charge of said locomotive had much better opportunity to observe the said Dewitt T. Smith and said automotive truck approaching said crossing than the said Dewitt T. Smith had of said railway tracks and of the approach of said locomotive and train for the reason that the said locomotive and train was travelling in the same direction as the said Dewitt T. Smith, while the said Dewitt T. Smith was seated in the closed cab of said truck with his back toward said locomotive and train and with only the rear glass of said cab through which to observe the approach of said locomotive and train and for the further reason that the said Dewitt T. Smith could only observe the approach of any locomotive or train travelling south on said tracks by stopping said automotive truck as he could not look backward through the rear glass in the cab of said truck and at the same time propel said truck with any degree of safety. That the top of said cab of said truck was some eighteen inches higher than the rear glass in the cab of said truck and was necessarily visible to the agents, servants, and employees of the defendants in charge of said locomotive engine which struck said automotive truck; whereas, said locomotive engine was not visible to the said Dewitt T. Smith, looking backward through the rear glass in the cab of said automotive truck and while said automotive truck was proceeding southward and parallel with said railway tracks, and in a depression between the hill to the north and said railway crossing to the south; that the agents, servants, and employees of the defendants in charge of and operating the aforesaid locomotive and train, in the exercise of ordinary care and diligence should have seen the said Dewitt T. Smith and said truck approaching said crossing and negligently, as hereinbefore and hereinafter set forth in other paragraphs of the original petition, failed to warn the said Dewitt T. Smith of the approach of said locomotive and train to said crossing and negligently failed to operate said locomotive and train and have same under such control and in such a manner as to avoid injuring or killing the said Dewitt T. Smith, or coming into contact with the said Dewitt T. Smith and his said automotive truck at said crossing, or any other person or persons who might have been entering upon the crossing, and negligently failed to reduce the speed of said train as it approached said crossing and to have the same under such control that they might, in the exercise of ordinary care and diligence, have been able to stop said locomotive and train, in time to avoid a collision with the said Dewitt T. Smith and his said truck and injuring or killing the said Dewitt T. Smith, that the agents, servants, and employees of the defendants then and there operating said locomotive and train negligently failed to keep a constant and vigilant lookout ahead of said locomotive and in anticipation of the presence of persons near or upon said crossing, and in order to avoid injuring or killing the said Dewitt T. Smith or any other person who might be near or upon said crossing." The defendants demurred both generally and specially; the demurrer was overruled; the case proceeded to trial terminating in a verdict in favor of the plaintiff; and the court refused to set the verdict aside on a motion for a new trial.

1. The demurrer was both general and special. The special demurrer, which attacked the petition for indefiniteness, inconsistence, and that certain allegations therein were conclusions of the pleader, without pleading evidentiary facts to support such conclusions, as, after the amendments to the petition, properly overruled.

"The measure of diligence due *** by a railroad company to any person, is a relative one; and what is or is not due diligence must be arrived at in every case with reference to the surrounding circumstances, and the relations which, for the time being, the company and the person in question occupied towards each other." Crawford v. Southern R. Co., 106 Ga. 870, 875, 33 S.E. 826, 827. "Generally the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks, and the duty of exercising such care and diligence does not in such case arise until the presence of the trespasser becomes known." Tice v. Central of Georgia R. Co., 25 Ga.App. 346 (1-b), 103 S.E. 262. Judge Fish, speaking for the court, more specifically states that this rule, as to the measure of damages owed by a railroad company to a trespasser, has two phases: "[1] Taking the locality where the train is running, and all the surrounding circumstances, if those in control of the movement of the train have no reason to apprehend that there may likely be a human being on the track in front of the engine, they are under no duty to one who may in fact be there, until they have actually discovered that he is there. [ 2] But if, from the locality or surrounding circumstances, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then, it seems to us, it is the duty of the employes of the company to keep a lookout ahead of the train, most assuredly so unless they are performing some duty which prevents their looking out upon the track in the direction in which the train is moving." (Brackets ours.) Crawford v. Southern R. Co., 106 Ga. 870, 873, 874, 33

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