Smith v. Atl. Coast Line R. Co

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER
• Citation: Smith v. Atl. Coast Line R. Co, 75 Ga.App. 346, 43 S.E.2d 420 (Ga. App. 1947)
• Decision Date: 27 June 1947
• Docket Number: No. 31614.
• Parties: SMITH. v. ATLANTIC COAST LINE R. CO. et al.

43 S.E.2d 420

75 Ga.App. 346

SMITH v. ATLANTIC COAST LINE R. CO. et al.

No. 31614.

Court of Appeals of Georgia, Division No. 2.

June 27, 1947

Syllabus by the Court.

The court did not err in sustaining the demurrer and dismissing the petition.

Ola Smith, whom we shall call the plaintiff, sought the recovery of damages against the Atlantic Coast Line Railroad Company and its engineer, whom we shall call the defendant, for the negligent death of her husband. A demurrer was filed by the defendant and sustained by the court dismissing the petition. It is to this judgment that error is assigned here. The material allegations of the petition are:

'5. At all times mentioned in this petition the defendant Paulk was a servant and employee of the defendant railroad company and at all such times was acting in the discharge of his duties as such servant and employee, he being so employed as an engineer and as such required, among the other duties required of him, to drive and operate a certain locomotive engine of the defendant railroad company designated as a 'switch engine' and to assist in the making up breaking up and to deliver all freight cars that might come in to the defendant railroad company's switch yards for delivery to various side tracks owned and operated by the defendant railroad company adjacent to the main line of the defendant railroad company including that certain siding adjacent to the main line of said defendant railroad company situated approximately one mile beyond the switch yards of the defendant railroad company as hereinafter more fully set forth.

'6. For more than 50 years preceding the date of the death of plaintiff's husband the main line of said railroad going North from the City of Thomasville has crossed two public streets in said City known as Calhoun and Webster Streets, the said streets being one block apart or approximately a distance of 500 feet; both of said streets extending from East to West.

'7. Approximately ten years prior to the homicide of plaintiff's husband, a large meat packing plant known as Georgia Packing Company was erected along the main line of the defendant railroad company within the limits of the City of Thomasville approximately one mile North of the defendant railroad company's switch yards and approximately three quarters of a mile from the North side of the crossing at Calhoun Street. In order to facilitate its business by delivery of all cars consigned to said Georgia Packing Company to the side track aforesaid by the use of its switch engines, it was necessary for the said switch engines and cars to be driven over the public crossing at Calhoun Street and along the main line of the defendant railroad company between the public crossings at Calhoun and Webster Streets in said City.

'8. At such public crossings and between the two streets mentioned the main line of the defendant railroad company ran through densely populated section of said City; it being a City of approximately 20,000 inhabitants.

'9. There was no obstruction between said crossing to prevent the defendant engineer from having a clear view of the track between the two aforesaid street crossings which track was at that locality, perfectly level and straight for a distance of at least 500 feet.

'10. For more than 10 years preceding the death of the plaintiff's said husband the public generally, including all persons residing adjacent to said railroad track and on the two streets aforesaid, have constantly, with the implied assent of the defendant railroad company, both by day and by night, in large numbers, used and walked along a well beaten pathway on said track and by the sides thereof in going from the Calhoun crossing to the Webster Street crossing, which fact was well known to the defendant railroad company and to the defendant engineer Paulk.

'11. In delivering cars to Georgia Packing Company or returning cars therefrom, the said locomotive and cars were not run on any fixed schedule, but ran at such times by day or night as might become necessary to deliver cars to the Georgia Packing Company and return empty cars therefrom.

'12. On the night of July 14, 1946, at or about the hour of 10 o'clock P.M., plaintiff's said husband entered upon said pathway at the North side of the public crossing at Calhoun Street, and started to walk along said well beaten pathway going North toward the Webster Street crossing. After he had gone less than 50 feet, a certain switch engine in charge of the defendant Paulk pushing one or two box cars in front of him going to said Georgia Packing Company siding was run over from behind, knocked down and dragged under said box car a distance of approximately 100 feet, as a result of which the body of her husband was mangled and mutilated; as a result of which your petitioner's husband died.

'13. Your petitioner shows that the defendant Paulk had so coupled the said switch engine to said box cars that the said box cars were directly in front of said engine with the result that the headlight on said switch engine was so close to the end of the box cars to which it was coupled, the said box cars being then and there pushed ahead of said engine, that the entire rays of said headlight were reflected upon the end of the box cars to which it was coupled, which so obscured the rays of said headlight that it was impossible for said rays to be reflected along the track ahead of said box cars so as to put petitioner's husband on notice that said box cars and engine were approaching him from the rear and so obscured the vision of the said engineer that he could not keep a vigilant outlook ahead of said engine for the purpose of discovering any person who might be on said pathway at that place, including your petitioner's husband.

'14. Your petitioner avers that on approaching said crossing at Calhoun Street and the pathway herein referred to the said engineer negligently failed as a signal of approach thereto to blow two long and two short blasts, and likewise failed to toll the engine bell to put your petitioner's husband on notice of the approach of said train from the rear.

'15. Petitioner avers that said defendant engineer negligently failed to keep and maintain a constant and vigilant outlook along the track ahead of said engine and likewise failed to exercise due care after passing over said crossing in order to avoid doing injury to your petitioner's husband at a point within 50 feet from said crossing.

'16. Your petitioner shows that no signaling device or light of any kind was placed on the front end of the box car furtherest from said locomotive by said engineer and likewise no watchman was placed on the end of said box car by said engineer to keep a constant and vigilant outlook along said track ahead of said moving box cars so as to give notice to petitioner's husband that said box cars were being pushed upon him from behind.

'17. Petitioner avers that if said engineer instead of pushing said box cars backward had so coupled said locomotive to said cars so that its headlight was reflected along the track ahead of it, and if said whistle had been sounded and said engine bell tolled or either of these things done, plaintiff's husband would have discovered its approach in time to have removed himself to a place of safety.

'18. Petitioner avers that said engine and box cars were gliding and rolling along without making any noise to attract the attention of petitioner's husband.

'19. Petitioner avers that her said husband did not see or hear said box cars approaching him from the rear.

'20. Petitioner shows that said engine and box cars were moving slowly and could have been brought to a stop within a distance of approximately 30 feet and thus prevented the killing of her husband.

'21. Your petitioner avers that the defendant engineer under the facts herein set forth was under the duty to anticipate the presence of petitioner's husband at the time and at the place where he was killed.

'22. Plaintiff avers that her said husband was at the time he was run over and in talking [walking] along said pathway in the exercise of ordinary care for his own safety.

'23. Petitioner avers that at the time of her husband's death he was 40 years of age and had an expectancy of life at 27.61 years, was of sound physical health and earning and capable of earning $50.00 per week.

'24. Plaintiff avers that the defendant engineer was negligent in failing to anticipate the presence of plaintiff's husband at the point where he was killed and failed to exercise ordinary care for the discovery of the plaintiff's husband.

'25. Defendant engineer was further negligent in that he failed to keep a constant and vigilant outlook ahead of said engine.

'26. Defendant engineer was further negligent in failing to blow the locomotive whistle or toll the engine bell; in failing to have any light or watchman on the end of the box car nearest your petitioner's husband.

'27. Petitioner avers that said defendant engineer was negligent in pushing said box cars ahead of said locomotive at night without any light or watchman on the end of the car nearest your petitioner's husband.

'28. The said defendant engineer was guilty of gross negligence in driving said box cars ahead of said locomotive at night with said locomotive so coupled to said cars in the rear of said box cars that the rays of the headlights on said locomotive centered on the end of the box cars to which it was coupled only a few feet in front of said headlight which obscured and prevented the rays from said headlight from being reflected ahead of said engine and ahead of such box cars, thus voluntarily putting himself where he could not keep a lookout along said track ahead of said engine and said cars, and by so doing obscured...