Reed v. Southern Ry. Co, (No. 18187.)

• Decision Date: 17 December 1927
• Docket Number: (No. 18187.)
• Citation: 140 S.E. 921,37 Ga.App. 550
• Parties: REED. v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

37 Ga.App. 550

140 S.E. 921

REED.

v.SOUTHERN RY. CO.

(No. 18187.)

Court of Appeals of Georgia, Division No. 2.

Dec. 17, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Suit by J. C. Reed against the Southern Railway Company. To review a judgment of nonsuit, plaintiff brings error. Reversed.

Statement of facts by JENKINS, P. J.:

J. C. Reed brought two damage suits against the Southern Railway Company, one for personal injuries, and the other f, or the value of two mules alleged to have been killed, and a wagon and harness alleged to have been damaged by the defendant company. By order of court, the two cases were consolidated and tried as one; the allegations of negligence on the part of the defendant and the facts in each case being the same.

The plaintiff alleges that, while he was driving his team across the track of the de-fendant, at a public crossing, during the nighttime, the team was struck by a passenger train of the defendant company, running at a speed of about 50 miles per hour, both of the mules being killed, the wagon and harness damaged, and the plaintiff severely injured. It is charged that the defendant company was negligent in operating its train at an excessive rate of speed; in not sounding an alarm, bell, or whistle when approaching the crossing; in not using due care in approaching the crossing so as to avoid injury to the property of the plaintiff; and in that the engineer operating the locomotive failed to keep and maintain a vigilant and constant lookout ahead and along the track, and failed to have the engine under control, and to stop it before striking the plaintiff's team. It is alleged that the plaintiff was in the exercise of due care, that he stopped and listened for a train before going upon the crossing, but that, on account of its excessive rate of speed, and the failure to give any warning of its approach, he did not ascertain its approach until the mules had reached the track just prior to the collision.

The proof for the plaintiff showed that he was traveling in his wagon, drawn by the mules, along the public road running parallel to the track of the defendant company, and going north; that the train of the defendant company was traveling south; that the public road bends sharply to the west to cross the railroad track; that the public road which plaintiff had been traveling was parallel to the railroad for a distance of more than half a mile; that the railroad track is perfectly straight for a mile or a mile and a half north of the crossing, and for a half mile south of the crossing; that there was a patch of cane from 7 to 10 feet high growing along the railroad right of way on the same side plaintiff was traveling, and beyond the bend in the road referred to; that the public roadbed along which plaintiff approached the crossing is three or four feet lower than the tracks of the railroad.

There was evidence from a witness offered by the plaintiff that he was familiar with the locality, and that there was no obstruction such as would prevent a person traveling north along the public road from seeing a train approaching from the north for a distance of a mile or more up to the station of Varnell, but, "if it was grown up in cane there, and the right of way in weeds, that would make a difference.'' This witness further testified that, "if the headlight was above the cane, and went over the cane, the cane would not have had anything to do with it." There was other evidence for the plaintiff that the growing cane, and some uncut weeds along the right of way, would obstruct the view of such a person traveling along the public road in the direction in which the plaintiff was traveling. There was further evidence for the plaintiff that the train sounded its whistle at the station of Varnell, about one and one-half miles north of the crossing, but that it was not sounded on approaching the crossing at the time of the accident. The evidence is not very clear as to whether the train was coming up grade or down grade when it reached the crossing. It would seem from the testimony of one witness that it climbed up grade for a major portion of the distance from Varnell to the crossing, and then began a down grade some distance from the crossing, and that, at the time it approached the crossing, it was running down grade.

The plaintiff testified that a short distance below the crossing a passing freight train frightened his mules, causing them to shy, and breaking a part of the harness; that he stopped his team, and repaired the harness, and then listened for another approaching train; that he then heard nothing, and proceeded to the crossing; that, after rounding the bend in the public road approaching the crossing, he again stopped his team, and looked and listened for an approaching train; that he heard nothing and saw nothing, and proceeded onto the crossing; that just as his mules got on the track he heard the approaching train, and saw the headlight of the...