Underwood v. Atlanta & W. P. R. Co.
| Decision Date | 25 January 1962 |
| Docket Number | No. 39219,No. 1,39219,1 |
| Citation | 124 S.E.2d 758,105 Ga.App. 340 |
| Parties | J. S. UNDERWOOD v. ATLANTA & WEST POINT RAILROAD COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. (a) When the language of a safety ordinance does not have an exact and concrete meaning, it should be given a reasonable and sensible interpretation to carry out the legislative purpose and render the ordinance valid. City ordinance, requiring railroads to provide at grade crossings 'complete public safety from danger from approaching trains', and 'for this purpose' to 'place and keep at each such grade crossing a watchman or flagman, or * * * standard automatic gates or signaling devices, sufficient to protect the public fully from the danger of an approaching train,' is construed to prescribe that within the City the standard of reasonable care for railroads includes the duty to have in action a man or device giving plainly visible signals that are adequate to give warning that a train is approaching, for a sufficient length of time before a train enters a crossing to enable people to stop before the train reaches the crossing. Such ordinance does not make railroads insurers nor place on them a duty greater than ordinary care required by State law.
(b) Such ordinance is reasonable and does not deny the railroad due process of law.
(c) Such ordinance is not void for uncertainty.
2. (a) Evidence of plaintiff's mental distress caused by his inability to care for his invalid wife and to care for and play with his children, which disability resulted from his bodily injury, was admissible to show an element of pain and suffering.
(b) Allegations as to plaintiff's physical disability to perform accustomed assistance in caring for helpless paralytic wife, which caused him great mental distress, are not demurrable as an attempt to plead evidence.
3. Statutory provision, requiring driver of 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, was intended for protection of passengers * * * In action against railroad by cab driver carrying passengers at time of collision, railroad cannot invoke failure to obey statute as negligence per se on part of plaintiff
4. Failure of a plaintiff to obey a statute, the violation of which is not negligence per se because the statute was not intended for the protection of the defendant, may be considered by the jury as a circumstance along with all of the facts in the case, in determining whether or not the plaintiff was negligent.
5. Evidence of conditions at places other than the one in question is not admissible to show whether a condition at the place in question is dangerous, in the absence of other facts and circumstances establishing relevancy.
6. Instructions, which, when the jury is given credit for ordinary intelligence are not confusing and prejudicial, are not reversible error.
7. Plaintiff's knowledge that railroad maintained a negligent condition at crossing is a factor to be considered in determining whether plaintiff's conduct at crossing was negligent, but such knowledge is not equal to a failure by plaintiff to exercise ordinary care to avoid the consequences of defendant's negligence.
8. Charge on comparative negligence, instructing in effect that one of the conditions upon which a reduced recovery to plaintiff is allowed is that plaintiff's negligence be found to be less than failure to exercise ordinary care, was error. The law is that mere want of ordinary care will not bar recovery, but will require apportionment of damages under the comparativenegligence rule.
The plaintiff (plaintiff in error) sued the defendant (defendant in error) for damages from personal injuries received in a collision between a taxicab which he was operating, in transporting passengers, and defendant's train. The allegations of the petition pertinent to this decision are as follows: The collision occurred in the City of Atlanta where the railroad crosses Wylie Street, which is a heavily traveled street in a business district. At said crossing there was no warning sign within the street or sidewalk line, no guard or watchman to warn of the approaching locomotive, no automatic signaling device nor standard automatic gates. The tracks were laid level with the street and not clearly visible to approaching vehicular traffic. It was dark when the collision occurred, and plaintiff did not see or hear the locomotive approaching. The engineer gave no signal by tolling of bell, blowing of whistle, or otherwise, nor did he check or reduce his speed. The engineer did not keep a constant and vigilant lookout or control the movement of the locomotive so as to avoid injury to plaintiff. When the collision occurred, not later than 30 minutes before sunset, the defendant did not have its locomotive equipped with an electric headlight of such construction and with sufficient candle power to render plainly visible at a distance not less than 300 feet in advance of such locomotive, any track obstruction, land mark, warning sign, or grade crossing plainly visible to the operator of such locomotive at a distance of 300 feet. The plaintiff's injuries were the result of the defendant's negligence, (a) in failing to maintain at said crossing a sufficient sign or signal to warn of the dangers inherent to said crossing; (b) in failing to maintain a watchman or guard or automatic signal device or automatic gates so as to give notice of the approach of a train; (c) in failing to signal the approach of said locomotive to the intersection by tolling of bell, sounding of whistle, or otherwise; (d) in that the engineer and crew of the train failed to maintain a proper lookout for the protection of persons approaching the intersection; (e) in operating the train at the intersection and the approaches thereto so as to reveal any imminent dangerous situation; (f) in that the engineer and crew failed to signal the approach of the train by constantly tolling the bell, which was negligence per se; (g) in not having its train equipped with an electric headlight of such construction and such candle power as hereinbefore described, which was negligence per se. The petition originally set forth in addition an ordinance of the City of Atlanta, which by its terms placed a duty on railroads to provide at grade crossings complete public safety from danger from approaching trains, and for this purpose to keep at such crossings at all times a watchman of flagman, or standard automatic gates or signaling devices, and contained an allegation that defendant's failure to comply with this ordinance was negligence. The defendant demurred to these allegations on the grounds that they violated certain provisions of the Constitutions of the United States and the State of Georgia. The trial court sustained the demurrers and ordered the petition redrawn to leave out all reference to said ordinance. The original petition alleged also as one of plaintiff's injuries that he was physically unable to care for his invalid wife in the home, which inability caused him great mental distress. The trial court sustained defendant's special demurrer to this allegation and the allegation was stricken from the petition.
In its answer the defendant alleged: As the plaintiff approached the crossing the train was approaching and was plainly visible to the plaintiff and in close proximity to the crossing, but the plaintiff failed to stop 'within 50 feet but not less than 15 feet from the nearest rail of said railroad and failed to remain stopped until he could proceed safely across said tracks.' The plaintiff drove upon the tracks without stopping immediately in the path of the train. The plaintiff's conduct was negligent and caused or contributed to any injuries he received. If the defendant was negligent, which it denies, the consequences of its negligence would and should have been avoided by the plaintiff if he had been exercising proper care and diligence; and the negligence of the plaintiff was greater than or equal to the negligence of the defendant.
By amendment to its answer the defendant alleged: The plaintiff was driving a taxicab for hire and had two passengers for hire therein at the time of the collision. Georgia Laws, 1953, Nov.Sess., pp. 556-594, Georgia Code Ann., § 68-1663, requires that the driver of a vehicle for hire before crossing the track or tracks of a railroad shall stop such vehicle within 50 feet but not less than 15 feet from the nearest rail of such railroad and while so stopped shall look and listen in both directions along such track for an approaching train and shall not proceed until he can do so safely. The plaintiff did not stop, listen and look as required by said statute before crossing the tracks; or if he did stop he nevertheless proceeded to cross the tracks before he could do so safely and in fact crossed said tracks immediately in the path of the approaching train, in violation of the aforesaid statute, which was negligence per se, which negligence caused or contributed to plaintiff's injuries. The plaintiff filed demurrers to the defendant's amendment to its answer, which the trial court overruled.
The plaintiff prior to trial filed interrogatories directed to the defendant's president or secretary, and the defendant filed a motion to quash the interrogatories. The trial court sustained the defendant's motion to quash certain paragraphs of the interrogatories.
The trial resulted in a verdict for the defendant on February 6, 1959. The plaintiff made a motion for new trial, which he later amended to add several special grounds. The trial court denied the motion for new trial on June 2, 1961.
The trial court on June 20, 1961, entered a judgment upon the verdict, nunc pro tunc, reciting that through inadvertence a judgment had not...
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