Southern Ry. Co. v. Daniell

• Decision Date: 22 September 1960
• Docket Number: No. 38449,No. 2,38449,2
• Citation: 116 S.E.2d 529,102 Ga.App. 414
• Parties: SOUTHERN RAILWAY COMPANY v. H. C. DANIELL
• Court: Georgia Court of Appeals

Page 529

116 S.E.2d 529

102 Ga.App. 414

SOUTHERN RAILWAY COMPANY v. H. C. DANIELL.

No. 38449.

Court of Appeals of Georgia, Division No. 2.

Sept. 22, 1960.

Syllabus by the Court

1. Negligence on the part of the plaintiff, even though it amounts to a lack of ordinary care, which concurs with the negligence of the defendant in causing the plaintiff's injuries, will reduce but will not bar a recovery, unless the plaintiff fails to exercise ordinary care to avoid the negligence of the defendant after it has or should have become apparent to him or unless it equals or exceeds the negligence of the defendant. Under the evidence in this case the question of whether the plaintiff's negligence is sufficient to preclude his recovery remains an issue for jury determination.

2. The trial court erred in his instructions to the jury regarding loss of earning capacity and the use of the mortality tables, in that the charge as given was applicable only in the event there was no dispute as to the permanency of the injuries, and there was insufficient evidence for the jury to determine the plaintiff's earnings prior to his injury, the probable length of his disability, or the extent of diminution of earning capacity such disability would occasion him.

H. C. Daniell filed an action for damages against the Southern Railway Company in the Superior Court of Haralson County, alleging that the defendant operates a railroad line which runs east and west in the City of Bremen, Georgia, intersecting with Buchanan Street, which runs in a north and south direction; that this is a well traveled crossing in the business section of the city, with many hundreds of automobiles crossing it day and night; that on April 28, 1959, at about 2:30 p. m. the plaintiff had parked his automobile about 75 feet north of the intersection facing north; that when he entered the vehicle he observed the train standing immediately west of the crossing with all the crew looking west, that is, in the opposite direction from the intersection; that he turned his automobile around and looked again, and the train and crew were still in the same position; that there was no flagman, no automatic signaling device, no watchman, and no signal that the train was about to approach; that as the plaintiff started upon the crossing the train, without warning, started forward and struck the right side of the automobile, inflicting property damage to it and personal injury to the plaintiff; that the defendant was negligent in failing to maintain a constant and vigilant lookout along its line of track to avoid injuring him; that it failed to maintain an automatic signaling device or watchman; failed to ring its bell as it approached in violation of a city ordinance, failed to blow its whistle or have a flagman at the crossing; failed to anticipate the presence of the plaintiff and other persons on the crossing at that time and place; failed to exercise ordinary care in the operation of the train, and was negligent in striking the plaintiff's vehicle and inflicting the injuries enumerated. The trial resulted in a verdict for the plaintiff. The defendant assigns error on the overruling of its motion for a new trial as amended, and the denial of its motion for judgment notwithstanding the verdict.

Claude Driver, Buchanan, Matthews, Maddox, Walton & Smith, John W. Maddox, Rome, for plaintiff in error.

E. B. Jones, Jr., Thomas B. Murphy, Murphy & Murphy, Bremen, for defendant in error.

TOWNSEND, Judge.

1. It is the contention of the defendant that it is entitled to judgment notwithstanding the verdict because the evidence demands a finding that the plaintiff's injuries proximately resulted from his own lack of ordinary care for his safety. The evidence shows that the train crew had been engaged in switching operations and that the engine, which had been disconnected from the cars, had been motionless for a few minutes prior to the collision; that its motor was running, which the plaintiff knew when he entered his automobile because he heard it; that when the plaintiff turned his automobile around and headed south to the crossing the engine was not moving, and the train crew, under their own testimony, were looking back down the track waiting for a hand signal to commence switching; that at that moment, which was the last time the plaintiff looked directly at the engine, it was about 40 feet west of the intersection and the plaintiff was the same distance north of the intersection; the time was the middle of the afternoon and there was no obstruction to block the view of either party. The plaintiff then drove slowly onto the crossing; as he came upon it he suddenly became aware of the increased noise of the train engine and looked up to find it within four feet from him; he jammed his brakes almost at the same instant the engineer on the train pulled its emergency brakes, and a collision followed which pushed the automobile about five feet sidewise down the track. Neither the automobile or the engine was moving at more than five miles per hour at the time. The evidence was disputed as to whether the defendant's employees had signaled by whistle and by ringing the bell. There was no other signal given that the train was in motion, and, as to this, the engineer testified concerning the conductor: 'I am sure he was on the crossing, he was supposed to have been flagging,' but other evidence showed the conductor was in fact standing west of the engine and not at the crossing. The evidence construed in favor of the verdict thus authorized the inference that the engine of the train had been standing motionless for some few minutes just beyond the intersection crossing, which was known to the crew to be an extremely busy one; that a flagman should have been on duty but was not, and that the engineer and fireman, charged with knowledge of the situation, put the engine in motion and drove it out into the crossing without looking in the direction in which they were moving, but with their heads turned in the opposite direction, so that not only could they not see the crossing but they gave the impression to any person looking at them that they intended to move, if at all, away from the crossing. The only question for decision is whether under these circumstances it should be held as a matter of law, either that the negligence of the plaintiff was equal to or greater than that of the defendant, or that the plaintiff failed to exercise ordinary care to avoid the negligence of the deendant after it should have been known to him. Ordinary negligence on the part of the plaintiff, unless it falls in one of these categories, will not bar recovery. Willis v. Jones, 89 Ga.App. 824, 81 S.E.2d 517; Conner v. Downs, 94 Ga.App. 482, 85 S.E.2d 393. In Smith v. American Oil Co., 77 Ga.App. 463, 491, 49 S.E.2d 90, 108, nine rules are summarized relating to contributory and comparative negligence in this State, the last reiterating the rule: 'It is generally a question for a fact finding body to determine questions of negligence and whose negligence and what negligence involved is the sole proximate cause of the injury. It is only where the negligent conduct alleged is susceptible of but one inference that it becomes a question of law for the court to determine.' There is no doubt but that in the present action both the plaintiff and the defendant were negligent, and there is no doubt but that, had either discovered the negligence of the other in time, this collision would not have occurred. There is no doubt that the plaintiff did not in fact discover the defendant's negligence until it was too late for him to extricate himself. As against the contention of the plaintiff in error that this court should hold, as a matter of law, that such failure to discover the defendant's negligence was in fact a lack of ordinary care on the plaintiff's part so as to preclude his recovery, counsel for the plaintiff argues these evidentiary facts: the plaintiff looked at the engine twice, once while the car was parked, and again after he turned it around, and it was standing still; there was no indication that the engineer intended to move toward the crossing but as a matter of fact he and the fireman were both looking back at the switching operation, from which it was to be assumed that the engine, if it moved at all, would move in the opposite direction; the plaintiff had a right to expect that under these circumstances if the engineer intended to...