Underwood v. Atlanta & W. P. R. Co., 39219

• Decision Date: 05 September 1962
• Docket Number: No. 1,No. 39219,39219,1
• Citation: 106 Ga.App. 467,127 S.E.2d 318
• Parties: J. S. UNDERWOOD v. ATLANTA & WEST POINT RAILROAD COMPANY
• Court: Georgia Court of Appeals

Page 318

127 S.E.2d 318

106 Ga.App. 467

J. S. UNDERWOOD v. ATLANTA & WEST POINT RAILROAD COMPANY.

No. 39219.

Court of Appeals of Georgia, Division No. 1.

Sept. 5, 1962.

Syllabus by the Court

Code Ann. § 68-1663, requiring a driver of a motor vehicle carrying passengers for hire before crossing railroad tracks to stop, listen and look in both directions for an approaching train, and not to proceed until he can do so safely, places an absolute duty on such drivers to stop, listen and look. The duration of stopping, listening and looking must be sufficient to assure a reasonably prudent person that no train is approaching that will endanger his proceeding across the tracks safely.

The Supreme Court of Georgia upon writ of certiorari has affirmed in part and reversed in part this court's judgment rendered in this case on January 25, 1962. See 105 Ga.App. 340, 124 S.E.2d 758, 218 Ga. 193, 126 S.E.2d 785. The plaintiff (plaintiff in error in this court) has now filed a motion for consideration of grounds of assignments of error which this court found it unnecessary to rule on in its previous opinion. The defendant (defendant in error) has filed a motion for reconsideration of errors which the defendant contends should be held not harmful to the plaintiff in view of the Supreme Court's decision reversing this court upon other assignments of error.

Greene, Neely, Buckley & De Rieux, John D. Jones, Atlanta, for plaintiff in error.

Heyman, Abram, Young, Hicks & Maloof, Herman Heyman, Atlanta, for defendant in error.

HALL, Judge.

1. This court held in its previous opinion that the railroad did not fall within the class of persons for whose benefit the statute (Code Ann. § 68-1663) was enacted. The Supreme Court reversed this court's ruling on this point. While conceding that the driver of a motor vehicle for hire is regulated by Code Ann. § 68-1663 only when he is carrying a passenger and is not regulated by Code Ann. § 68-1663 when he is not carrying a passenger, the Supreme Court nevertheless held that the reailroad was within the class of persons for whose benefit Code Ann. § 68-1663 was enacted. Since the decisions of the Supreme Court of Georgia interpreting Code Ann. § 68-1663 are binding on this court as precedents, we must accept their above logic to be infallible. Therefore, a violation of this statute would be negligence per se as to the defendant railroad.

Having held in our previous opinion that Code Ann. § 68-1663 was inapplicable, we did not consider plaintiff's assignments of error in Grounds 6 and 12 of his motion for new trial, complaining of a charge of the court, set out below, on the ground that it was an incorrect explanation of the statute: 'I charge you that the statute of this State governing the conduct of the plaintiff at the railroad crossing in question required that he stop in a place where, by looking, he could see and, by listening, he could hear, and where he could give his undivided attention by looking and listening to determine whether or not a train was approaching, and, if he failed to do this, you would find that he was in violation of his legal duties, which would constitute negligence per se, that is, negligence as a matter of law.' The statute being applicable under the decision of the Supreme Court we must now consider whether this charge is error.

The defendant contends that the evidence concerning the plaintiff's conduct at the crossing, construed most favorably to him, is insufficient to show that he complied with Code Ann. § 68-1663. The plaintiff testified that he stopped where he could see, listened, looked or 'glanced' both ways, and started forward. We agree with defendant's contention that the statute places an absolute duty on drivers to stop, listen and look.

The duration of the stopping,...