Syllabus by the Court.
1. Under the pleadings, evidence, and law, the court did not err in overruling the motion for a new trial so far as the general grounds are concerned.
2. We find no reasons for reversing the judgment of the court below in overruling the special grounds of the amended motion.
Error from Superior Court, DeKalb County; Bond Almand, Judge.
Death action by W. P. Garland and another against the Southern Railway Com
pany. Judgment for plaintiffs and defendant brings error.
Affirmed.
See also 41 S.E.2d 925.
Error is assigned here by the Southern Railway Company, whom we shall call the railroad, on a judgment overruling its amended motion for a new trial which complained of a verdict rendered against it in favor of William P. Garland, and William P. Garland as next friend of Robert Lee Garland, whom we shall call the plaintiff. The petition, omitting the formal parts, alleged substantially, in paragraph 2, that the plaintiff had been damaged in the sum of $50,000. Other paragraphs of the petition read:
"3. On February 6, 1945, Mrs. Helen Louise Garland, who was the wife of plaintiff William P. Garland, and the mother of plaintiff Robert Lee Garland, along with N. J. Carroll and Mrs. R. A. Anderson, was a guest in the 1935 Ford coach automobile being driven by O. L. Adams along the paved public highway leading from Dora-ville, Georgia, to Chamblee, Georgia, in DeKalb County, Georgia, and said automobile was approaching the public crossing over the railway line of the defendant Southern Railway Company just North of Chamblee
"4. Said automobile was travelling in a southerly direction as it approached said crossing, and said railroad at said point ran in the general direction of North and South.
"5. The railroad North of said crossing curved to the West. Just North of said crossing was a deep cut, there being a high embankment on each side of the railroad to the point within 50 to 75 yards of said crossing. There were also trees and bushes along and adjacent to the East side of said railroad North of the said crossing, and there were houses between the highway and the railroad beginning at a point about 100 yards North of said crossing.
"6. Said highway North of said crossing extended in the same general direction as the railroad and the automobile in going over said crossing was required to cross at a sharp angle. The rear of said automobile in making the crossing would extend almost directly North in the same generaldirection as the railroad extended North of the crossing.
"7. As said automobile, travelling as aforesaid at the moderate rate of speed of about 20 miles per hour, approached and was crossing over said crossing from the East side toward the West side, it was struck in the right rear side by a freight train operated by the defendant company, and knocked violently from the crossing and wrecked, and Mrs. Helen Louise Garland received fatal injuries from which she died shortly afterward.
"8. Defendants Rowland and Southern Railway Company were negligent as a matter of law in that Rowland, the engineer of said locomotive, when he reached a point 400 yards from the center of the railway's intersection with said public highway and approaching said crossing, failed to signal the approach of said train to said crossing by blowing through the whistle of the locomotive two long and two short blasts at intervals of five seconds each, as required by statute, and said defendants were guilty of negligence as a matter of law in that the engineer, after reaching said point and while approaching said crossing, failed to keep and maintain a constant and vigilant lookout along the track ahead of said engine in order to avoid injuring any person or property which might be on said crossing.
"9. All of said defendant were negligent in that the engineer and fireman in charge of said train were operating said train at said time over said crossing in a thickly settled industrial and residential section of DeKalb County, Georgia, adjacent to the incorporated town of Chamblee, Georgia, and over said much used highway crossing, at a speed of about 35 to 40 miles per hour, in violation of the requirements of ordinary care, and were negligent in that said engineer and fireman, in approaching said crossing, failed to keep a proper lookout ahead along the track and in that they failed to slow down the speed of said train or stop said train when the engineer and fireman in charge of said train saw or should have seen said automobile moving toward said crossing and about to enter upon said crossing.
"10. All of said defendants were negligent in that the engineer and fireman in charge of said train failed to signal the approach of said train to said crossing by blowing the whistle of said locomotive as required in the exercise of ordinary care, and said defendants were negligent in that they failed to signal the approach of said train on said crossing by ringing the bell of said locomotive as required in the exercise of ordinary care.
"11. All of said negligent acts contributed to and caused the injuries and death of said decedent, Mrs. Helen Louise Garland."
Paragraph 12 alleges the age, earning capacity, and life expectancy of the deceased wife and mother. An amendment to the original petition reads as follows:
"1. They amend paragraph 3 so as to make the language 'just North of Chamblee' to read 'just inside the City of Chamblee.'
"2. Plaintiffs amend paragraph 9 so as to make the language 'adjacent to the incorporated town of Chamblee, Georgia, ' to read 'within the incorporated town of Chamblee, Georgia.'
"3. Plaintiffs say that the defendants Southern Railway Company and H. R. Rowland, the engineer, were negligent in operating said train at said time within the corporate limits of said town of Chamblee and at the same time failing to constantly toll the bell of said locomotive as required by statute.
"4. Plaintiffs say that said crossing was in a thickly settled industrial and residential section just inside the Town of Chamblee, and said crossing was much used by the defendant Southern Railway Company and by the public, and there being about 125 or more trains travelling over said crossing every twenty-four hours and there being several hundred motor vehicles passing over said crossing every twenty-four hours, and plaintiffs say that, in addition to said other acts of negligence alleged in their petition, defendant was negligent under said circumstances in failing to have either a watchman or an automatic signal warning device at said crossing to warn persons about to go over the crossing of the danger to them."
There was a further amendment which had to do only with changing certain phrase-ology in paragraph 12 of the original petition.
The railroad and the engineer Rowland and the fireman Scruggs each filed separate, similar answers denying the material allegations of the petition and further alleging that the deceased by a failure to exercise ordinary care was the author of her own death and that if she had exercised ordinary care she could have avoided the consequences of the negligence of the defendants, if any existed. The answers further alleged that the sole proximate cause of the death of the deceased was the negligence of the operator of the car which the deceased, at the time of the injury received, was riding as a guest. The plaintiff introduced evidence from which the jury were authorized to find that all the acts of negligence alleged in the petition had been committed by the defendants or some one or more of the defendants. And the defendant submitted evidence in support of their answers that they were not guilty of any of the acts of negligence alleged in the petition; and further that if there were any act or acts of negligence proven against the defendants or either of them, that the deceased could, by the exercise of ordinary care, have avoided the consequences of the negligence on the part of the defendants, or either of them, if any negligence existed on the part of the defendants or either of them; and there was also evidence submitted on behalf of the defendants that the sole proximate cause of the death of the deceased was the negligence of the operator of the car. The evidence in, the arguments completed, the court charged the jury substantially and literally as follows: The court first charged as to the nature of the petition and then charged literally as follows: "They allege that the defendants, Rowland and the Southern Railway Company, were negligent as a matter of law in that Rowland, the engineer of said locomotive, when he reached a point four hundred yards from the center of the railway's intersection with said public highway, and approaching said crossing, failed to signal the approach of said train to said crossing by blowing through the whistle of said train two long and two short blasts at intervals of five seconds each, as required by statute; and
said defendants were guilty of negligence as a matter of law in that the engineer, after reaching said point and while approaching said crossing, failed to keep and maintain a constant and vigilant lookout along the track ahead of said engine in order to avoid injuring any person or property which might be on said crossing.
"They allege that all of said defendants were negligent in that the engineer and fireman in charge of said train were operating said train at said time over said crossing in thickly settled industrial and residential section of DeKalb County, Georgia, adjacent to the incorporated town of Chamblee, Georgia, and over said much used highway crossing at a speed of about thirty-five to forty miles per hour, in violation of the requirements of ordinary care; and were negligent in that said engineer and fireman, in approaching said crossing, failed to keep a proper...
