Western & A. R. Co v. Smith

• Decision Date: 18 May 1916
• Docket Number: (No. 436.)
• Citation: 145 Ga. 276,88 S.E. 983
• Parties: WESTERN & A. R. CO. v. SMITH.
• Court: Georgia Supreme Court

145 Ga. 276

88 S.E. 983

WESTERN & A. R. CO.

v.SMITH.

(No. 436.)

Supreme Court of Georgia.

May 18, 1916.

(Syllabus by the Court.)

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by W. C. Smith against the Western & Atlantic Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Tye, Peeples & Jordan, of Atlanta, and Maddox, McCamy & Shumate, of Dalton, for plaintiff in error.

Lipscomb & Willingham and Nathan Harris, all of Rome, and Geo. G. Glenn, of Dalton, for defendant in error.

LUMPKIN, J. W. C. Smith brought suit against the Western & Atlantic Company to recover damages for an injury alleged to have occurred to himself and his automobile while he was attempting to cross the right of way of the defendant on a public highway. There had been a bridge over a creek which ran beside the right of way, and from this to the crossing over the track of the defendant there had been an approach. The county authorities tore down the old bridge and constructed a new one. Between the abutment and the track there was an open space, some feet lower than the track. It was alleged that the plaintiff ran his automobile into this without knowing of the danger, and that the defendant was negligent in leaving the public highway and its right of way between its track and the county bridge in a dangerous condition, in not having a watchman at the crossing to warn the public of this condition, and in not having the road closed, so as to give warning of the danger. A demurrer to the petition was overruled, and exceptions pendente lite were filed. The plaintiff recovered a verdict. A motion for a new trial was overruled, and the defendant excepted.

1. There was no merit in the demurrer, and it was properly overruled.

2. The court charged the jury as follows:

"Now a railroad company is required by law to use all ordinary and reasonable care and diligence to keep crossings reasonably safe for public use and all approaches thereto; and if the railroad company in this case did that, then it would not be liable, but if it did not, and the plaintiff could not by the exercise of ordinary care have avoided the injury, then the plaintiff could recover, but if it did not, the railroad was at fault and negligent in not doing so, and the plaintiff by the exercise of ordinary care could have avoided the injury to himself, then he could not recover."

By Civil Code 1910, § 2673, it is declared: "All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws."

It was contended by counsel for the company that the crossing involved in this case was rendered unsafe by reason of the fact that the county authorities were engaged in building a new bridge, and that the company was under no duty to repair the crossing or render it safe until it was notified by the authorities that the county work was completed and it had had reasonable time thereafter within which to repair the crossing. If it be conceded that the evidence showed that the county authorities had created a dangerous condition by tearing down the old bridge and building a new one over a creek which ran near the defendant's track, but had finished their work, yet it does not follow that, after their work had been completed and nothing remained but for the railroad company to put the crossing and the approach thereto in good repair, an express notice from the authorities to the railroad company that they had completed their work could be declared necessary, as matter of law, before any duty on the part of the company would arise. There was evidence to the effect that the contractor under the county did not tear away the part of the old wooden bridge which was on the right of way of the company, but only "the county's part, " and that the company had the part which was on the right of way torn away the week before the injury to the plaintiff, and at the time of its occurrence had not filled in the opening left, but did so during the following week. Under the evidence, the charge complained of did not contain error as against the defendant, requiring a new trial, for the reasons assigned. See, in this connection, Cleveland v. City Council of Augusta, 102 Ga. 233, 29 S. E. 584, 43 L. R. A. 638.

3. By section 5 of the act of 1910, regulating the operation of automomiles (Acts 1910, pp. 90, 92, Park's Code, § 828 [e]), it is declared:

"No person shall operate a machine on any of the highways of this state as described in this article at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property, and upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways and railroad crossings, the person operating a machine shall have it under control and operate it at a speed not greater than six miles per hour."

Relatively to the provision in regard to approaching railroad crossings, the primary object was to guard against dangers such as collision with a train or other vehicles or persons, or things passing over the crossing or near to it. It was not the legislative scheme that the operator of such a machine owed a statutory duty to the railroad company to keep the machine under control and not to cause it to run more than six miles an hour so as to prevent running into a hole or down a declivity, if the company should negligently leave one on its right of way, but not immediately on the crossing of the tracks, by failing to comply with its statutory duty asto keeping the public...