Shuler v. Southern Ry. Co., 39640

Decision Date11 September 1962
Docket NumberNo. 39640,No. 1,39640,1
Citation127 S.E.2d 471,106 Ga.App. 523
CourtGeorgia Court of Appeals

Syllabus by the Court

The court erred in directing a verdict for the defendant because there were issues of fact which should have been submitted to a jury.

John R. Shuler sued the Southern Railway Company in the Superior Court of Floyd County to recover damages for personal injuries and property damage caused by the alleged negligence of the railroad in connection with a collision between the plaintiff's automobile and the defendant's engine at a public crossing in Rome, Ga., in which the plaintiff's automobile struck the engine to the rear of the engineer's cab. The petition alleged, among other things: '4. That on or about April 21, 1960, at or about 1 p. m., plaintiff was operating a Buick, 4 door, hardtop automobile on a public paved street in the City of Rome, Ga., said street being known and designated as Watson Street, while traveling in a southerly direction thereon, said plaintiff was then and there approaching a point on said street where same is crossed by the railroad tracks of the defendant, with said tracks at this point running generally in an easterly-westerly direction. 5. That the tracks of the defendant at said place are used in its operation of trains in and upon its said tracks for the purpose of transporting freight, switching of cars to and from various manufacturing plants, and for other purpose known to defendant, in the City of Rome, Floyd County, Ga., and is a public crossing. 6. That as plaintiff approached the northerly side of said tracks while continuing to travel in a southerly direction on and along Watson Street, he looked in a westerly direction and in an easterly direction, and not seeing any trains of defendant or engines being operated thereon, continued on preparing to cross said tracks. 7. That on and along the northerly and southerly side of the tracks and on defendant's right of way was at said time and place certain hedge, trees, weeds and bushes, as well as trees and bushes to the east and west side of Watson Street just on the north side of said defendant's railroad tracks, which obscured the view of defendant's tracks and trains for plaintiff and persons traveling upon said public street. 9. That there were no warning signs of railroad crossing visible to plaintiff and no signal device in operation to warn plaintiff of defendant's train approaching from the east immediately prior to the approach of plaintiff to the northerly side of defendant's tracks. 10. That when plaintiff reached the tracks of defendant company, then and there preparing to cross same, a train of the defendant pulling one car, without any warning or signal whatever, came from the east and to petitioner's left, and into said railroad crossing, striking the automobile of plaintiff, said impact cutting off the front end of plaintiff's automobile back to the front of its engine, taking with defendant's train engine portions of plaintiff's automobile's front wheels, grill and generally the front end completely. 11. That at the time and place aforesaid plaintiff was driving said automobile at a speed of approximately 20 or 25 miles per hour while it was raining. 12. That at the time of said collision the engine of the defendant was being operated at a high and rapid speed for the time and place, to wit: a speed in excess of 15 miles per hour, and the agents, servants and employees of defendant's said train failed to blow its whistle or give any other signal of its approach * * * 14. That because of the fast and reckless speed of 30 to 35 miles per hour of the defendant's engine at the time and place, immediately after the collision said engine traveled on west and down the tracks for approximately 300 feet before stopping, during which time the engine wheels were being skidded on and along the tracks in an effort by the engineer to stop said engine which was at the time pulling only one car. 15. Said agents, employees and servants of the defendant failed to maintain a proper lookout for automobiles using said public crossing, and had said agents, employees and servants maintained a constant and vigil lookout, they could have seen plaintiff's automobile approaching said crossing inasmuch as the cab of the railroad engine where the defendant's engineer and firemen were or should have been stationed, was approximately 15 feet above the level of the tracks, thus giving an occupant thereof a clear view of the crossing and approaches thereto. 16. Petitioner shows that the defendants, its agents, servants and employees were guilty of negligence per se as follows: A. The engineer operating said locomotive as herein alleged failed to keep and maintain a constant and vigilant lookout along the tracks ahead of said engine as required by Georgia Code Sections 94-506 and 507. B. Said engineer failed to exercise due care as herein alleged while approaching said crossing in order to avoid doing injury to any person or property which might have been on said crossing as required by Georgia Code Sections 94-506, 507, and 701. C. Said engineer failed to give the required signal on approach of his train to said crossing by constantly tolling the bell of said locomotive as required by Georgia Code Section 94-507. D. By said defendant through its servants, agents and employees driving and running its train in excess of 15 miles per hour in the City of Rome, Georgia, in violation of Section 52. Article V. Speed Regulations of the City Ordinance of Rome, Georgia, which is as follows: 'Section 52--Maximum speeds on streets. Twenty-five miles per hour shall be the maximum speed, except as follows: (A) * * * (B) At railroad crossings for railroad trains--15 miles per hour.' 17. Said defendant, by and through its agents, servants and employees, was guilty of further negligence as follows: A. In permitting bushes, hedges, trees and weeds and vines to remain at said public crossing as an obstruction to the view of travelers on said public street approaching said crossing. B. In failing to remove from said embankments the bushes, weeds, vines and hedges so as to allow travelers on said public street an unobstructed view of the tracks approaching said crossing. C. In failing to post and maintain at said public crossing a sign or device to give warning to travelers on the street of the presence of said crossing. D. In failing to give any warning by bell, whistle or otherwise, of the approach of said train until...

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