Southern Ry. Co. v. Flynt

• Decision Date: 20 June 1907
• Docket Number: 245.
• Citation: Southern Ry. Co. v. Flynt, 58 S. E. 374, 2 Ga. App. 162 (Ga. App. 1907)
• Parties: SOUTHERN RY. CO. v. FLYNT.
• Court: Georgia Court of Appeals

58 S.E. 374

2 Ga.App. 162

SOUTHERN RY. CO. v. FLYNT.

No. 245.

Court of Appeals of Georgia

June 20, 1907

Syllabus by the Court.

The statute requiring the blowing of the whistle or the ringing of the bell and the checking of the speed of the train when approaching a public crossing is not applicable when the injury occurred elsewhere than at a public crossing.The statute is for the protection of those on the crossing approaching with the intention to use it, or who have just passed over the crossing.

[Ed Note.-For cases in point, seeCent. Dig. vol. 41, Railroads§ 1260.]

The violation of a rule of the company in the operation of its trains is not actionable negligence, unless such violation was the proximate cause of the injury.

[Ed Note.-For cases in point, seeCent. Dig. vol. 41, Railroads, § 1390.]

Relatively to travelers on adjacent highways, when the crossing law is not applicable, railroad companies are under no duty to regulate the speed of their trains to prevent horses from becoming frightened at the sight of the moving train, or the noise produced thereby, and are not liable for injuries resulting from horses becoming frightened on highways at the mere sight of its trains, or the noises usually and necessarily incident to the running of the trains.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 41, Railroads, §§ 1260, 1271.]

Railroad companies are not required, where the crossing law does not apply, to give any warning signal to travelers upon adjacent highways of the approach of the train; nor are they required to keep any lookout for such travelers.The probability of horses becoming frightened on public roads near to railroad tracks by the running of trains, which may result in injury, is a risk which the traveler on the road assumes, and is one for which the railroad company is not responsible, unless caused by the negligent conduct of its employés in operating the train in an unusual and unnecessary manner.

[Ed. Note.-For cases in point, seeCent. Dig. vol. 41, Railroads, § 1260.]

The duty to give warning signals, and to keep a lookout is limited to persons on the track, or that apparently may get on the track.No such duty is required as to travelers on adjacent and parallel highways.

Where those in charge of the running train see apparent danger to persons on the highway, it then becomes their duty to use reasonable and practicable care to prevent injury.

"Injuries resulting from the frightening of a horse by the appearance of moving railway cars, trains, or locomotives, or the usual noises or incidents of their ordinary operation, are damnum absque injuria."

Applying the foregoing principles of law to the petition and the amendments thereto, there was no actionable negligence alleged, and the general demurrer to the petition as amended should have been sustained.

Error from City Court of Forsyth; W. M. Clark, Judge.

Action by J. W. Flynt against the Southern Railway Company.Judgment for plaintiff, and defendant brings error.Reversed.

Arthur Heyman and Cabaniss & Willingham, for plaintiff in error.

Smith, Berner, Smith & Hastings, for defendant in error.

HILL C.J.

J. W. Flynt brought suit against the Southern Railway Company to recover damages for the loss of the services of his wife.In his original petition he alleged the following facts: On December 29, 1904, he and his wife were riding in a buggy along a public street in the town of Culloden.The street crossed the track of the defendant, and, after crossing the track, ran for some distance parallel to the same.As petitioner drove his buggy up to said crossing, he stopped and listened for the train, heard none, and drove over the crossing.If any warning had been given by the ringing of the bell or the blowing of the whistle, he would not have driven upon and over said crossing until the train had passed.While the buggy in which he and his wife were riding was near the track of the defendant, and the horse was turning into the street, a freight train approached the crossing at a rapid rate of speed without ringing the bell, or blowing the whistle, or giving any other warning, thereby frightening the horse and causing him to become unmanageable.The horse ran a short distance from the track, and then began backing towards the track, and his wife, fearing that he would back onto the track and into the train, and cause her death, jumped from the buggy to the ground.He alleges, further, that the defendant failed to check and keep checking the speed of said train as it approached the crossing, and failed to ring the bell or blow the whistle, all of which he alleges was negligence; that because of the situation of the public street and the railroad at said place, it was one in which horses and animals would be frightened at the approach of trains, and the defendant knew this, or would have known it by the exercise of reasonable care, and in the exercise of reasonable care should have blown the whistle or rung the bell as the train approached said place, and the failure to ring the bell or blow the whistle as it approached said place was negligence.Each and all of said negligence, it is alleged, caused the injury to plaintiff's wife.The petition fully sets forth the character of her injuries, her age, the value of her services, and doctors' bills.To this petition the defendant demurred generally, on the ground that the petition "does not set forth any cause of action," the demurrer setting forth specifically wherein the petition fails to set forth any cause of action, and demurred specially on the ground that the petition failed to set forth with sufficient particularity the rate of speed which was complained of.

To meet this demurrerthe plaintiff amended his declaration as follows: The train was running over the crossing at a rate of 10 or 15 miles an hour.Plaintiff and his wife were riding in his buggy about dark.On their approach to the town of Cullodenthey crossed the track of the railroad company and turned into a public road which ran parallel with the track for several hundred yards, down to another public crossing just north of the depot of the defendant.The track and the public road were close to each other.Looking down this road to the depot of the defendant, a person would be unable in the nighttime and at the hour in which they were traveling to determine whether the train was moving at all, and, if moving, whether it was moving from or towards him; the inability to determine this fact being due to the straightness of the road and the track with reference to the depot.The place on the public road at which the injury occurred was near the public crossing within the city limits.In view of this fact, and the locality of the public road with reference to the track, it was the duty of the company to operate its trains, especially after dark, with such care and diligence, and to have its trains under such control, that they could be stopped at any time in the event travelers along the road were being endangered by their operation, and failure to exercise this care and diligence in this particular case brought about said injuries, for which the defendant is liable.It is a rule of the defendant that, "when cars are pushed by an engine (except when shifting and making up trains in the yards), a white light must be displayed on the front of the leading car at night."The train which caused the injury was being pushed back by the engine, and there was no light of any character upon the front of the rear car to put the defendant upon notice that the train was moving in his direction, so that he could be upon his guard and get out of the buggy, or otherwise avoid the danger of the train, and this failure to comply with said rule was negligence.It was the duty of the defendant, in the exercise of reasonable care and diligence, when it undertook to operate its trains from the depot back towards Atlanta and over the public crossing near the depot, and along the highway over which the petitioner and his wife were traveling, to have a flagman or other employé on the end of the rear coach, so as to detect any danger to travelers over said road and avoid injuries to them.This was especially true in view of the fact that there was a public crossing over said railroad track; and in any view it was the duty of the company, in operating its trains after night, pushing them back, to have rung the bell, blown the whistle, or to have had a light upon the rear end of the said car, or an employé thereon to detect the danger to travelers and avoid injuries to them.Failure to have said light or said employé on the end of said car, or to ring the bell, or to blow the whistle, was negligence, for which the defendant was liable in the event of injury resulting.

Although it is alleged that the train approached a public crossing at an illegal and rapid rate of speed, without checking the speed, or blowing the whistle, or ringing the bell, it is clear, from the allegations of the petition as amended, that a violation of the requirements of the public crossing law is not relied upon as a ground of recovery.This law is made only for the protection of travelers at or near the crossing, and in this case it is alleged that the plaintiff had left the crossing and was in the public road running parallel with the railroad down to the crossing near the depot.Indeed, the crossing over...