Wall v. Southern Ry. Co., A90A0646

• Decision Date: 03 July 1990
• Docket Number: No. A90A0646,A90A0646
• Citation: 196 Ga.App. 483,396 S.E.2d 266
• Parties: WALL v. SOUTHERN RAILWAY COMPANY.
• Court: Georgia Court of Appeals

Page 266

396 S.E.2d 266

196 Ga.App. 483

WALL v. SOUTHERN RAILWAY COMPANY.

No. A90A0646.

Court of Appeals of Georgia.

July 3, 1990.

Rehearing Denied July 20, 1990.

James E. Thompson, Tucker, for appellant.

Neely & Player, Edgar A. Neely III, Tami L. Brown, Atlanta, for appellee.

CARLEY, Chief Judge.

While crossing two parallel railroad tracks at their intersection with a city street, appellant-plaintiff was struck by one of appellee-defendant's trains. Seeking to recover for the injuries that he suffered, appellant brought this negligence action against appellee. He appeals from the trial court's grant of appellee's motion for summary judgment.

1. Construed most favorably to appellant, the record reveals the following: When appellant approached the railroad crossing, one of appellee's trains was stopped so that its caboose blocked half of the crossing. After waiting one-half hour, appellant followed two other pedestrians around the caboose of the stationary train and was struck by another of appellee's trains that was traveling on the parallel track. Appellant's view of the moving train was obstructed by the stationary train. Although there were no "guards down" at the intersection, appellee presented unrebutted evidence that the crossing was equipped with other warning devices which were operational during the time in question. Moreover, the lights, bells and whistle on the moving train were in operation and the train was proceeding very slowly, eight to ten miles per hour. The railroad signal for the moving train was green.

"Relying upon OCGA § 46-8-292, [appellant] contends a genuine issue of material fact remains with respect to [appellee's] negligence vel non. Pursuant to that Code section, a rebuttable presumption of negligence arises whenever a person is injured on a railroad track by the running of locomotives or cars of railroad companies. The presumption disappears, however, 'when the railroad company introduces evidence showing the exercise of reasonable care and skill, that is, ordinary care, by its employees in the operation of the train at the time and place in question. (Cit.)' [Cit.] In view of [appellee's] showing of ordinary care, it was up to [appellant] to show by the evidence that there remains a genuine issue for trial. OCGA § 9-11-56(e). Moreover, it was incumbent upon [appellant] to make this showing without any aid from OCGA § 46-8-292. [Cit.]" Houston v. Ga. Northeastern R. Co., 193 Ga.App. 687, 688, 388 S.E.2d 762 (1989).

Appellee contends that "[t]he mere act of stopping railroad cars on a crossing for such a length of time as might be reasonably necessary in the conduct of the railroad's business would not constitute negligence on the part of [appellee]." (Emphasis in original.) Atlantic Coast Line R. Co. v. Marshall, 89 Ga.App. 740, 743(2), 81 S.E.2d 228 (1954). There is, however, evidence in the instant case other than appellee's mere act of stopping one of its trains on a crossing. There is also evidence of the obstruction of appellant's vision by one of appellant's trains that was partially blocking a two-track crossing for a half-hour. " 'While a railway company has generally the right to [stop] cars upon its sidetracks, it is a jury question whether the [stopping] of cars upon a particular sidetrack, under stated circumstances, is negligence as related to one whose injury may have been caused or contributed to by the improper or untimely placing of such cars.' ... [T]he maintaining of cars on sidetracks so as to obstruct the view of persons entering the crossing may be considered by the jury as a separate act of negligence contributing to the injury although other acts of negligence might be alleged in regard to the speed of the train, failure to signal and to provide flagmen, etc." (Emphasis in original.) Western & Atlantic R. Co. v. Davis, 116 Ga.App. 831, 835-36(1b), 159 S.E.2d 134 (1967). See also Atlantic Coast Line R. Co. v. Clark, 93 Ga.App. 278, 91 S.E.2d 386 (1956).

Moreover, "the mere presence of safety precautions such as automatic signalling devices [neither] renders the railroad free from negligence as a matter of law, [n]or relieves it from adopting such other measures as public safety and common prudence dictate." Seaboard Coast Line R. Co. v. West, 155 Ga.App. 391, 392(1), 271 S.E.2d 36 (1980). See also Isom v. Schettino, 129 Ga.App. 73, 75(1), 199 S.E.2d 89 (1973). This would be especially true where, as here, the automatic signalling devices were in operation for a half-hour due to the presence of a stationary train which otherwise obstructed appellant's view of the moving train on the parallel track. Cf. Seaboard Coast Line R. Co. v. West, supra 155 Ga.App. at 392(1), 271 S.E.2d 36. "[O]rdinarily a railroad is not bound to maintain a watchman or flagman at a crossing, but must do so if the particular circumstances demand it. We hold that the evidence in this case would authorize [a] jury, under all the facts and circumstances involved here, to find that [appellee] should have exercised more diligence than this record reveals." Atlantic Coast Line R. Co. v. Assoc. Transports, 94 Ga.App. 563, 566(3), 95 S.E.2d 755 (1956). The failure to employ additional precautions " ' "may amount to negligence under the particular facts and circumstances, although there is no statute so declaring." (Cit.)' " Southern R. Co. v. Ga. Kraft Co., 188 Ga.App. 623, 624(5), 373 S.E.2d 774 (1988).

2. Appellee further contends that, even if it were negligent, appellant failed to exercise ordinary care for his own safety as a matter of law and, thus, appellant is barred from any recovery. See OCGA § 46-8-291....