Western & A. R. R v. Peterson, (No. 6666.)

• Decision Date: 02 March 1929
• Docket Number: (No. 6666.)
• Citation: 168 Ga. 259,147 S.E. 513
• Parties: WESTERN & A. R. R. v. PETERSON.
• Court: Georgia Supreme Court

168 Ga. 259

147 S.E. 513

WESTERN & A. R. R.

v.PETERSON.

(No. 6666.)

Supreme Court of Georgia.

March 2, 1929.

(Syllabus by Editorial Staff.)

[COPYRIGHT MATERIAL OMITTED.]

Russell, C. J, and Hines, J, dissenting in part.

Error from Superior Court, Cobb County; Jno. S. Wood, Judge.

Action by Erland Peterson against the Western & Atlantic Railroad. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Reversed.

Tye, Thomson & Tye, of Atlanta, and Morris, Hawkins & Wallace, of Marietta, for plaintiff in error.

Geo. and John L Westmoreland, of Atlanta, and J. E. Mozley, of Marietta, for defendant in error.

Syllabus Opinion by the Court.

ATKINSON, J. A railroad company operates a line of railroad between Atlanta, Ga., and Chattanooga, Tenn., and passes through the city of Marietta, Ga. A resident of the state of Illinois, with a companion from the same state, was returning to Illinois from the state of Florida in his automobile. While he was driving west on Kennesaw avenue, "in the City of Marietta, " and in the act of crossing the railroad track, a south-bound train of the railroad company bore down upon him, demolishing the automobile and inflicting personal injuries. In a suit for damages, after verdict for the plaintiff, the defendant's motion for new trial was overruled.

1. The sixth paragraph of the petition alleged that plaintiff and his companion were wholly unacquainted with the fact that the highway crossed the railroad track at that point, and were unaware of the railroad crossing until they were upon it; also that the night was cloudy and foggy, and "they were unaware of the approach of the said train until they saw the headlight thereof, when the train was so near that it was impossible for the driver of said automobile to escape being hit by the engine of said train." This was amended by alleging that the train was "within one hundred feet of the crossing" when they discovered its "approach." In another paragraph it was alleged that the train was running at the rate of 35 miles per hour. The sixth paragraph of the petition as amended, considered in connection with the allegations in other portions of the petition as to the speed of the train, was not subject to special demurrer upon the ground that the allegations thereof were mere statements of conclusions of the pleader, and were too vague and indefinite, in that they failed to state how far from the railroad track the plaintiff and his companion were when they saw the headlight of the train. Fairly construed, the allegations stated substantially that the plaintiff and his companion were on the railroad track at the time they saw the headlight of the train. The allegations do not bring the case within the rulings in Blackstone v. Central of Georgia Ry. Co., 105 Ga. 380, 31 S. E. 90, and Seaboard Air-Line Railway v. Olsen, 123 Ga. 612, 51 S. E. 591.

2. In paragraph 7 of the petition it was alleged: "That the plaintiff is informed and believes and so charges that the said crossing is a dangerous crossing and the defendant had no watchman, guard, or other warning there to protect travelers from going on the railroad track when trains were approaching, and this was negligence on the part of the defendant, its agents and servants." This paragraph was not subject to dismissal on special demurrer on the grounds that the allegations were mere statements of conclusions of the pleader, and that, when considered in connection with other allegations of the petition, they were insufficient to charge negligence.

[3-5J 3. In paragraph 9 of the petition as amended it was alleged: That plaintiff "was injured by the running of said train, by and through the negligence of the defendant, its agents and servants as follows: (a) That the defendant's agents and servants, who were operating said train in approaching the crossing of said highway with the railroad track, failed and neglected to give any warning of the approach of said train by * * * ringing the bell or otherwise, (b) That the defendant was negligent in running said train at a reckless and negligent rate of speed over said crossing, to wit, at the rate of 30 to 35miles per hour, (c) That the defendant was negligent in approaching said crossing, without having the said train under control, so as to be able to stop the same before hitting the automobile upon discovering its position of danger, (d) That defendant was negligent in failing to keep a lookout for persons crossing its railroad track on said highway as the same is crossed almost constantly by travelers by day and night, (e) That defendant was negligent in running its said train at a greater rate of speed than 10 miles per hour in violation of the ordinance of said city of Marietta." The allegations contained in the foregoing subparagraphs (a), (b), and (c) are not subject to dismissal on special demurrer on the grounds that the allegations were mere conclusions of the pleader and are insufficient in law when standing alone or in connection with the further allegations of the petition to charge negligence.

4. In the twelfth paragraph of the petition it was alleged: "That the plaintiff was 46 years of age at the time of his injuries, was healthy and strong, and was capable of earning, and was earning, the sum of three hundred dollars per month; but his capacity to labor and earn money has been diminished one-fourth by said injuries for the balance of his life, as his said injuries are permanent." A demurrer was interposed to so much of this paragraph as alleged that the plaintiff "was capable of earning, and was earning, the sum of three hundred dollars per month, " upon the ground that such allegation was too vague and indefinite, because it was not alleged how or in what manner the plaintiff was "capable of earning, and was earning, the sum of three hundred dollars per month, " and it was not alleged in what capacity the plaintiff was engaged or "for whom the plaintiff was working." If, on demurrer to the petition as a whole, the defendant would have been entitled to have the plaintiff make allegations of the character mentioned, in order to enable it to properly prepare its defense, the grounds of objection taken were not sufficient to require the striking of paragraph 12 of the petition.

5. The following paper was introduced without objection:

"Section 104 of the City Ordinances of Marietta. * * * No railroad company, nor any person in charge of any train of cars, car, or locomotive, shall run the same within the corporate limits of said city at a greater speed than ten miles per hour. The conductor and engineer, either or both, in charge of such cars or locomotive, shall be responsible for the running of the same, and on conviction of a violation of this section, shall be fined not more than one hundred dollars or be imprisoned in the calaboose or confined at labor on the said streets of the city not more than fifty days for each offense.

"Georgia, Cobb County. City of Marietta. I, W. C. Carriker, Clerk of the City of Mari etta and Clerk of Mayor and Council of the City of Marietta, Georgia, do hereby certify that I am the custodian of the records, books, papers, laws and ordinances of said city, and that the foregoing is a true and correct copy of Ordinance No. 104 or section 104 of the City Ordinances of The City of Marietta of the file in my office."

Later during the trial a motion was made to exclude said section 104 from evidence on the ground that it does not appear on the minutes of council and had not been adopted as an ordinance. On this motion extraneous evidence was introduced, which showed that said section 104 was copied by the clerk of the city council from a printed pamphlet in the office of the clerk, commonly used by the municipality as a Code of ordinances and purporting to have been prepared by Fred Morris, and was not copied from anything appearing on the minutes of council; also that the pamphlet did not appear on the minutes of council. The following appeared on the minutes of council:

"Council Proceedings. Marietta, Ga. Feb. 6th, 1905. Regular Meeting of Council. Present, Mayor J. E. Mozley and full board of council, except Dobbs and Brumby. Minutes of last regular and called meetings were read, and on motion adopted. After having obtained unanimous consent of all the councilmen present, the new ordinances, as compiled by Attorney Fred Morris, was approved and adopted. On motion, council adjourned to Tuesday, Feb. 7th, till 7:30 o'clock p. m. J. M. Austin, Clerk. Approved. J. E. Mozley, Mayor."

There was parol evidence to the effect that the attorney mentioned in this excerpt from the minutes of...