Seabd. Air Line Ry. Co v. Benton

• Decision Date: 15 June 1931
• Docket Number: No. 20856.,20856.
• Citation: 43 Ga.App. 495,159 S.E. 717
• Parties: SEABOARD AIR LINE RY. CO. v. BENTON.
• Court: Georgia Court of Appeals

43 Ga.App. 495

159 S.E. 717

SEABOARD AIR LINE RY. CO.

v.BENTON.

No. 20856.

Court of Appeals of Georgia, Division No. 2.

June 15, 1931.

Rehearing Denied July 20, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Barrow County; W. W. Stark, Judge.

Action by M. P. Benton against the Seaboard Air Line Railway Company. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Affirmed.

R. H. Kimball, of Winder, and John B. Gamble, of Athens, for plaintiff in error.

Shackelford & Shackelford, of Athens, Harwell, Fairman & Barrett, of Atlanta, and Richard B. Russell, Jr., of Winder, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J.

This was a suit for damages on account of the death of the plaintiff's husband in a collision at a public crossing between an automobile truck which he was driving and a passenger train of the defendant railway company. The court overruled a general and special demurrer to the petition as amended. The trial resulted in a verdict in favor of the plaintiff, and the defendant excepts to the order overruling its motion for a new trial, based upon the usual general grounds and numerous special grounds. Error is also assigned upon exceptions pendente lite taken to the order overruling the demurrer. The petition as amended alleged in substance that the decedent drove upon the tracks of the defendant company without being aware of the approach of the train, and that his truck was struck by the on-coming passenger train of the defendant, traveling at a speed of sixty miles an hour, and approaching the public crossing in a populous community without the whistle being blown, and without the bell being rung, without the speed of the train being slackened, and without the engineer and fireman keeping a constant and vigilant lookout ahead, and while the fireman was engaged, in violation of the rules of the company, in firing the engine on approaching the station. It is charged that such acts constituted negligence, and were the proximate cause of the death of the decedent. Held:

1. What constitutes negligence on the part of a defendant, what constitutes the proximate cause of an injury, and what amounts to a failure to exercise ordinary care on the part of a plaintiff, are generally questions for a jury. Farrar v. Farrar, 41 Ga. App. 120, 152 S. E. 278, and cases cited. Even had the petition disclosed, and the evidence established, that the decedent was driving the automobile in violation of the statutes regulating the use of motor vehicles, such fact would not necessarily preclude any sort of recovery. Louisville & Nashville R. Co. v. Stafford, 146 Ga. 206, 209, 91 S. E. 29; Cen-tral of Ga. Ry. Co. v. Larson, 19 Ga. App. 413, 91 S. E. 517.

2. The act approved August 19, 1918 (Ga. L. 1918, p. 212; Michie's Code 192G, §§ 2677(1) to 2677(4), regulating the operation of railroad trains, by which the provisions of the Civil Code 1910, §§ 2675-2677, known as the "blow-post law, " were repealed, imposed certain duties upon the employees of a railway company in approaching a public railroad crossing, a failure to comply with which constitutes negligence per se. Louisville & Nashville R. Co. v. Faust, 30 Ga. App. 310 (2), 117 S. E. 761. The provisions of the act of 1918 are not affected by the decision of the Supreme Court of the United States in Seaboard Air Line Ry. Co. v. Blackwell, 244 U. S. 310, 37 S. Ct. 640, 61 L. Ed. 1160, L. R. A. 1917F, 1184, since the ruling there made affected only the constitutionality of the provision of the previous statute, repealed by the act of 1918, with reference to checking the speed of a train on its approach to a public crossing. Davis v. Whitcomb, 30 Ga. App. 497 (6), 118 S. E. 488.

3. Independently of the provisions of the statute regulating the operation of railroad trains on approaching public crossings, there rests upon the railroad company a duty to exercise ordinary care, and a failure of the servants of a railroad company operating its train to give any signal by bell, whistle, or otherwise, or to check the speed of the train on approaching a public crossing, might, in the opinion of the jury, constitute actual negligence, in the light of the surrounding facts and circumstances. Southern Ry. Co. v. Slaton, 41 Ga. App. 759, 762 (4), 154 S. E. 718; Western & Atlantic Railroad v. Reed, 35 Ga. App. 538, 540, 134 S. E. 134; 52 C. J. p. 175, § 1769; p. 209. § 1810; Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403.

4. In accordance with the foregoing rulings, the petition in the instant case stated a cause of action, and was not subject to the demurrers interposed.

5. "Under the constitutional amendment of 1916, defining the jurisdiction of the Supreme Court and the Court of Appeals of this State, the Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States or any treaty." Gulf Paving Co. v. Atlanta, 149 Ga. 114, 99 S. E. 374; Daniel v. Claxton, 35 Ga. App. 107, 132 S. E. 411. In the instant case the plea of the defendant sets forth, in substance, that to subject the defendant railway company to liability for damages on account of the alleged negligence in failing to check the speed of its train on approaching the crossing at which the homicide occurred, in view of the facts set forth by the plea as to the number of crossings on the line of the defendant's railway in the state of Georgia, and the time that would be consumed in checking the speed of the train at each such crossing, would amount to an unauthorized regulation of interstate commerce, in that it would impose an unreasonable burden thereon, thus violating the commerce clause of the Federal Constitution. But since the defendant thus merely contends that to hold it liable under the facts would be violative of the Federal Constitution as imposing an unreasonable burden on interstate commerce, and raises no question as to the constitutionality of any statute of the state of Georgia, this court is not deprived of jurisdiction to pass upon questions of actual negligence, growing out of a particular state of facts, although involving in a general sense the application of unquestioned and unambiguous provisions of the Constitution. Southern Pacific Co. v. DiCristina, 36 Ga. App. 433 (I), 435, 137 S. E. 79.

In the absence of action by Congress authorizing the particular acts, complained of as negligence, or in prescribing the degree of care and diligence to be exercised by a railroad company in operating interstate trains at public crossings, assuming, without deciding, that Congress has such power, it cannot be said that the general duty to exercise ordinary care, imposed by the law of the state upon its citizens generally, constitutes an unreasonable burden upon interstate commerce because persons engaged in interstate commerce incidentally come within the purview of such general laws. See, in this connection, U. S. v. Bevans, 3 Wheat. 337, 4 L. Ed. 404; Sherlock v. Ailing, 93 U. S. 99, 23 L. Ed. 819.

The charge of the court submitting to the jury for determination all the questions of negligence raised by the petition was, therefore, not error.

6. The court did not abuse its discretion in declining to send the jury from the courtroom while counsel for the plaintiff, in the course of his argument, read to the judge the act approved August 24, 1929 (Ga. L. 1929, p. 315), enacted after the injury sued for, providing that "in all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such company, shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury." See Rutledge v. Hudson, 80 Ga. 2G6 (4), 5 S. E. 93; Slaughter v. Heath, 127 Ga. 747 (8), 57 S. E. 69, 27 L. R. A. (N. S.) 1.

7. Movant contends that the court abused its discretion in refusing the motion of counsel for defendant to declare a mistrial because counsel for plaintiff presented in his argument to the court and in the presence of the jury the act of 1929, supra. This act was remedial in its nature (Searcy v. Stubbs, 12 Ga. 437 (2), 439), and for that reason could have application, in a proper case, to a cause of action arising prior to its enactment; but even were it to be assumed that such rule would be totally inapplicable in all cases where evidence combating the grounds of negligence alleged by the plaintiff had been introduced on behalf of the defendant, this court would feel unauthorized to set the verdict and judgment aside on the theory that the judge abused his discretion in refusing to declare a mistrial merely because he had permitted counsel in his argument to the court to present in the presence of the jury his contention arising from that statute.

& The court properly instructed the jury that the pleadings should be looked to in determining the issues between the parties, and the incorrect statement of the court, in stating the contentions made by the pleadings, that the petition alleged that the decedent, on the occasion of the homicide, stopped the automobile truck in which he was riding, before going upon the crossing, in order to determine whether or not the right of way was clear, was not calculated to mislead the jury, since there was positive evidence on the plaintiff's behalf that such was the case, although the petition alleged merely that before entering the crossing the decedent and his brother "looked east and west up and down said...