Shelley v. Pollard

• Decision Date: 03 December 1936
• Docket Number: No. 25556.,25556.
• Citation: 189 S.E. 570,55 Ga.App. 88
• Parties: SHELLEY. v. POLLARD.
• Court: Georgia Court of Appeals

55 Ga.App. 88

189 S.E. 570

SHELLEY.

v.POLLARD.

No. 25556.

Court of Appeals of Georgia, Division No. 2.

Dec. 3, 1936.

Rehearing Denied Dec. 17, 1936.

Syllabus by Editorial Staff.

JENKINS, P. J., dissenting.

Error from Superior Court, Taylor County; C. F. McLaughlin, Judge.

Petition by Redman Shelley against H. D. Pollard, receiver. To review a judgment sustaining a general demurrer to the petition, plaintiff brings error.

Reversed.

R. L. Addleton and Leward Hightower, both of Griffin, and Chas. C. Stone, of Butler, for plaintiff in error.

Arnold & Battle, of Columbus, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, Judge.

1. It is sufficient to authorize the inference that a railroad company is guilty of negligence in allowing a string of dark freight cars, at 11:30 o'clock on a dark, cloudy night, while there is "a fine mist of rain, " to remain standing on its track across a public highway, which is one of the principal highways in the county and city, inside the limits of a city of two to three thousand inhabitants between 200 and 250 yards from the public square of the city, with no light, bell, or other warning sign indicating the presence of the cars across the highway, with no watchman guarding the crossing, where the cars had remained standing over the crossing from twenty to thirty minutes, in violation of an ordinance of the city prohibiting trains blocking the crossing for a period longer than five minutes.

2. Where a person traveling in an automobile along the public highway on a dark, cloudy night about 11:30 o'clock while there is "a fine mist of rain, " approaches a railroad crossing upon which a string of freight cars is standing, and has no knowledge of the presence of the cars on the crossing and there are no lights, bell, gong, sign, or other device to warn the traveler or other persons approaching the crossing of the presence of the cars on the crossing, and there is no watchman guarding the crossing, and there are no signs erected at or near the crossing to warn him of the presence of the crossing, and he is not aware that he is in the immediate vicinity of the crossing, and where, on account of the cars being a dark color, the lights of the automobile do not reflect upon the cars, so as to warn the traveler of the presence of the cars, until he is approximately within ten or fifteen feet of them, and is therefore afforded no opportunity to apply the brakes and stop the automobile, which is running between fifteen and twenty miles an hour, before running into the cars, and where the cars are standing on the main...