Southern Ry. Co v. Garland

• Citation: 41 S.E.2d 925
• Decision Date: 08 February 1947
• Docket Number: No. 31426.,31426.
• Parties: SOUTHERN RY. CO. v. GARLAND et al.
• Court: Georgia Court of Appeals

41 S.E.2d 925

SOUTHERN RY. CO.

v.GARLAND et al.

No. 31426.

Court of Appeals of Georgia,

Division No. 1

Feb. 8, 1947.

.

Judgment Adhered to After Rehearing April 2, 1947.

Error from Superior Court, DeKalb County; James C. Davis, Judge.

Suit by William P. Garland, as next friend for his three year old minor child, Robert Lee Garland, against Southern Railway Company and another to recover damages for death of Mrs. Helen Louise Garland. To review the judgment, the named defendant brings error.

Reversed.

Neely, Marshall & Greene, of Atlanta, B. Hugh Burgess, of Decatur, and Edgar A. Neely, Jr., of Atlanta, for plaintiff in error.

Arnold, Gambrell & Arnold and Walter P. McCurdy, all of Atlanta, B. Hugh Burgess, of Decatur, and Neely, Marshall & Greene, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

GARDNER, Judge.

1. The petition is brought by a father, William P. Garland, as next friend, for his three year old minor child, Robert Lee Garland, to recover damages for the death of Mrs. Helen Louise Garland, the mother of the minor child and the deceased wife of the father. The suit is against the Southern Railway Company and its fireman and engineer jointly, and against the Southern Railway Company.

Substantially, the petition alleges that the mother entered an automobile at Doraville, Georgia, as a guest, with three others. The car was being driven by the host, O. L. Adams. They entered the car and proceeded southward toward Atlanta, on a paved and much travelled highway which ran through the Town of Chamblee, and there intersected with a double track of the Southern Railway Company. It is further alleged that the crossing was located in a thickly settled and industrial section just inside the Town of Chamblee, and that there were being operated by the railroad company over this crossing about 125 or more trains every 24 hours, and that several hundred motor vehicles passed over the said crossing during the same period of time. It is also alleged that near to the approach to the crossing is a deep cut which prevented the view of an approaching train going southward toward the City of Atlanta, and a dangerous curve in the railroad track approaching the crossing. It is alleged further that the embankment adjacent to the point which the automobile was passing and the trees and houses and other objects thereabout prevented the operator of the car from seeing an approaching train; that as the automobile approached the crossing it was being driven at a moderate rate of speed and was slowed down to approximately 20 miles per hour. The driver cautiously looked, could neither see nor hear a train approaching, and has passed over the north track and was partially over the south track when a freight train of the Southern Railway Company, carrying 58 cars, struck the automobile, and killed the mother of the minor child. Acts of negligence are alleged in the petition against the servants (the fireman and engineer of the train), in failing to blow the whistle or ring the bell or keep a proper lookout or slow down the train. It is further alleged as an act of negligence alone against the railroad company that the railroad company alone was negligent in failing to maintain a watchman at the crossing, or in failing to maintain a proper signaling device to warn and protect automobile operators on said highway passing over the crossing.

The engineer and fireman and the Southern Railway Company filed separate, though similar, answers to the petition. In the answers negligence on the part of any of the defendants was denied. It is affirm atively and specially alleged in the answers of the defendants (a) that the sole and proximate cause of the death of Mrs. Garland was her own negligence in that she entered the car as a guest with the host Adams who had lost his right leg in the military service; that he had not obtained an artificial leg and that he was incapable of operating an automobile with any degree of safety; that she was well acquainted with these physical disabilities of the host Adams, since she had been in his company frequently for two or three months; (b) that the sole and proximate cause of the death of Mrs. Garland was the negligence of the operator of the...