Southern Ry. Co v. Riley, s. 27424, 27425.

• Citation: 4 S.E.2d 54
• Decision Date: 12 July 1939
• Docket Number: Nos. 27424, 27425.,s. 27424, 27425.
• Parties: SOUTHERN RY. CO. v. RILEY. SAME. v. SANDERS.
• Court: United States Court of Appeals (Georgia)

4 S.E.2d 54

SOUTHERN RY. CO.

v.RILEY.

SAME.

v.SANDERS.

Nos. 27424, 27425.

Court of Appeals of Georgia,

Division No. 2.

July 12, 1939.

Judgment Adhered to July 26, 1939.

Syllabus by the Court.

1. The evidence authorized a charge that the law requires persons in charge of a train to blow the whistle on approaching a public crossing.

2. The evidence did not authorize a charge that the law requires the railroad company to have erected by the side of the highway a warning sign indicating the approach to the crossing, where the sign had been erected but had been knocked down in the nighttime and the evidence was insufficient to authorize a finding that the railroad company was negligent in not having the sign replaced at the time of the accident complained of.

3. Where the injuries complained of were caused by the plaintiff's running into a train of the defendant at a crossing after about 29 box cars had passed over the crossing, and it therefore does not appear that the failure of the engineer on the train to keep a lookout ahead could have caused the injuries, a charge to the jury that the law requires the engineer to keep such a lookout was not adjusted to the evidence. While such charge may not be error requiring a new trial to the defendant, it should not have been given.

4. Where a minor child has contributed to his mother's support by performing valuable services around the home and she is dependent upon him, she may still be dependent upon him for support notwithstanding he may at the time of his death have been living separate from his mother and not performing the services, but was returning to the mother to continue living with her as heretofore. The mother may still be dependent upon the child for support notwithstanding she may contribute to his support more in value than he contributes to her support.

Error from Superior Court, Henry County; G. Ogden Persons, Judge.

Separate suits by Mrs. A. W. Riley, and by M. W. Sanders, against the Southern Railway Company for injuries to Mrs. Riley and for the death of Mrs. Sanders' minor son, which injuries and death were caused when automobile driven by Mrs. Riley and in which Mrs. Sanders' son was riding collided with a train. Verdict for plaintiff for $2,500 in each case, and, to review the judgments, defendant brings error.

Judgment in each case reversed.

Harris, Harris, Russell & Weaver, of Macon, for plaintiff in error.

Arnold, Gambrell & Arnold, of Atlanta, and Earnest M. Smith, of McDonough, for defendants in error.

STEPHENS, Presiding Judge.

Mrs. A. W. Riley and Mrs. Mildred Wilson Sanders brought separate suits against Southern Railway Company for the recovery of damages growing out of the same transaction. Mrs. Riley brought suit for personal injuries alleged to have been received by herself, and Mrs. Sanders brought suit for the recovery of the homicide of her minor son, both injuries being caused by the collision between a train at a public crossing of the defendant and an automobile which Mrs. Riley was driving and in which the son of Mrs. Sanders was riding. The injuries were alleged to have been caused by the negligence of the defendant railroad company in failing to, sound the whistle of its engine as required by law on approaching the crossing, and in negligently failing to have erected on the side of the highway a sign warning persons approaching along the highway of the existence of the crossing. Both cases were tried together. In each case the jury found a verdict for the plaintiff in the sum of $2,500. The defendant railroad company in each case moved for a new trial. To the overruling of the motions for new trial, the defendant, in separate bills of exceptions, excepts.

For a statement of the allegations of the petitions, see the report of these cases in 57 Ga.App. 26, 194 S.E. 422, in which judgments overruling the demurrers to the petitions were affirmed.

1. It appears from the evidence that Mrs. Riley, about 4 o'clock in the morning of January 5, 1936, was travelling in anautomobile which she was driving in a southerly direction along the public highway leading from McDonough towards Macon, and was approaching a point where the railroad tracks of the defendant company crossed the highway, and that accompanying her in the car was her grandson, the little Sanders boy, who was nine years of age, that she was unfamiliar with the road, had never travelled over it before, and did not know the proximity of the defendant's railroad or of the crossing; that she was travelling at the rate of about 35 miles an hour, according to her testimony; that after she had turned a curve in the road to the right and the headlights upon her car had shown in the road ahead of her, she observed the train of the defendant passing over the crossing going in a northerly direction; that she immediately applied the brakes and deflected her car to the left and ran into the moving train of the defendant, with the result that she received severe physical injuries, and the child was killed. There was evidence that Mrs. Riley did not see the train, or know of its approach until she observed it after turning the curve in the road and her lights fell upon it, and that when she discovered the existence of the train she was unable to stop her car in order to avoid the collision. Mrs. Riley testified that she had the window on the side of her car partly open, when travelling the highway and approaching the crossing, and did not hear the blowing of the whistle on the defendant's train. There was also evidence that a railroad crossing sign, which had been on the convex side of the curve, on the left side of the road approaching the crossing, at or about the point where the road began to curve to the right, was down on the ground, and that Mrs. Riley did not see any crossing sign warning her of the proximity of the crossing. There was evidence as to the extent of her injuries, and also evidence tending to show that Mrs. Sanders was dependent upon the child for support and that he contributed thereto, and tending to establish the value of the child's life.

Upon the trial of the case it appeared that the engineer of the defendant company, who operated the train at the time, was dead. The only evidence tending to show that the defendant's train sounded the crossing whistle was that of other employees of the defendant. The conductor upon the train testified that a blast of the whistle at the crossing could have been heard for several miles, as far as Mrs. Riley was from the engine of the train when it was at the blow post.

It is inferable from the evidence as to the speed at which Mrs. Riley was travelling, notwithstanding the fact that the 35th car of the train had passed over the crossing...