Western & A. R. R v. Reed, (No. 16736.)

• Decision Date: 18 June 1926
• Docket Number: (No. 16736.)
• Court: Georgia Court of Appeals
• Parties: WESTERN & A. R. R. v. REED.

35 Ga.App. 538

134 S.E. 134

WESTERN & A. R. R.

v.REED.

(No. 16736.)

Court of Appeals of Georgia,

Division No. 2.

June 18, 1926.

(Syllabus by the Court.)

Error from Superior Court, Cobb County; D. W. Blair, Judge.

Suit by Nora Reed against the Western & Atlantic Railroad. Judgment for plaintiff, and defendant brings error. Affirmed.

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

Reuben R. Arnold and Lowry Arnold, both of Atlanta, and Mozley & Gann, of Marietta, for defendant in error.

BELL, J. Mrs. Nora Reed brought suit against the Western & Atlantic Railroad to recover for the homicide of her son Ralph. After a verdict in favor of the plaintiff, the defendant made a motion for a new trial, which was overruled, and the movant excepted. This is the second appearance of the case in this court. In 33 Ga. App. 396, 126 S. E. 393, we held that the petition set forth a cause of action and was not subject to the special demurrers interposed. We are to now determine whether there was any evidence to authorize the verdict, and whether the trial was free from prejudicial error. The allegations of the petition need not be repeated in detail, as they are shown in the previous report.

1. The first contention of the plaintiff in error is that the evidence failed to show any negligence by the railway company. The homicide was not at a pubic crossing, but was at one which, according to the petition, "had been established over the defendant's right of way with the defendant's consent, " was "recognized" by it, and was "well traveled." We held in the former decision that it should be left to the jury to determine whether the acts and omissions complained of constituted negligence. The ruling then made is the law of the case, and, whether right or wrong, is now binding, if the allegations were proved as laid. But the further study and deliberation which we have been able to give the case under the present writ of error has not lead us to doubt the soundness of the former ruling. It finds support in the following authorities, in addition to those previously cited, Atkinson v. Fountain, 10 Ga. App. 307 (3), 73 S. E. 534; Bullard v. Sou. Railway Co., 116 Ga. 664 (1), 43 S. E. 39; A. C. L. R. Co. v. Taylor, 125 Ga. 454 (1), 54 S. E. 622; Shaw v. Railroad, 127 Ga. 8 (1), 12, 55 S. E. 960; and is deemed not to be in conflict with any of the cases relied on by the plaintiff in error, including Sou. Ry. Co. v. Eubanks, 117 Ga. 217 (1), 43 S. E., 487; Sou. Ry. Co. v. Flynt, 2 Ga. App. 162 (1), 58 S. E. 374; W. U. Telegraph Co. v. Spencer, 24 Ga. App. 471 (5), 101 S. E. 198; Kelley v. Hines, Director General, 25 Ga. App. 186, 102 S. E. 921; Moore v. S. A. L. Ry. Co., 30 Ga. App. 466 (1), 118 S. E. 471. It is well settled, of course, that the statutes requiring certain things to be done by railroad companies at public road crossings can have no application in a case like the present, in which the crossing was not one of that character (see McCoy v. Central Ga. Ry. Co., 131 Ga. 378 [1], 62 S. E. 297), but a railroad company may be negligent as a matter of fact where it is not so as a matter of law. That is to say, an act or omission may amount to negligence under the particular facts and circumstances, although there is no statute so declaring. The fact that the law says that the company shall do certain things at a public road crossing does not mean that the dictates of ordinary prudence might not require the doing of the same or similar things at other crossings used by the public with the knowledge and consent of the company. The petition in this case did not charge the violation of any statute, but simply alleged the omission, in certain particulars, of ordinary care, the duty of such care sufficiently appearing. We have carefully considered the evidence, and cannot say that it fails to show that the defendant was negligent in one or more of the ways alleged.

The next question is, Does it appear that the decedent, Ralph Reed, was so negligent himself as to bar a recovery? He was a little over 10 years of age, and was at the time riding in an automobile belonging to his father and driven by his 15 year old brother, Riley. The fatal occurrence was in the daytime. As the train approached from the north, it was clearly visible from the crossing for a distance of 1, 600 to 2, 000 feet. The boys were approaching the crossing from the northeast, with the railroad track to their right. The track could have been plainly seen by them from any point on the road on which they were traveling and more than 40 or 50 feet of the crossing. There was a depression in the road 40 or 50 feet from the crossing, and between this and the track was certain vegetation. By reason of these circumstances the view might have been obstructed for a short distance. The decedent's father testified with reference to the vegetation; the depression was shown by surveys and blue prints; and Byrd Park testified:

"Sitting on my porch over there and looking at that automobile as it came around that low place, I couldn't see anything but the top of it; I could just barely see the top of it; it was most out of view in that low place, but the other part, I could see it plainly until it got to that low place."

Park testified also that as the train "was coming down to that crossing it was making very little noise." It was making 35 to 40 miles per hour, while the automobile was moving at the rate of only 10 to 15 miles per hour. The direction of the wind was from the southeast to northwest, or toward the train from the automobile. A street car on a track parallel with the railroad, and also going south, had passed the crossing when the boys were within about 200 feet of it, and this may have had their attention for some time before and after it crossed. Both boys were killed, and it is not known why they did not stop in time to avoid the collision. "Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation." Civil Code 1910, § 3474. The want of proper care on the part of the decedent was a mat-ter of defense (Atlantic Coast Line R. Go. v. Wildman, 29 Ga. App. 745 [4], 116 S. E. 85S), and, under the facts appearing, this court cannot say that the defense was established as a matter of law; and this is true irrespective of whether the rulings by the courts of this state to the effect that it is not negligence per se for a person not aware of the approach of a train to attempt to cross the track at a public crossing without stopping, looking, and listening would apply with equal force where the crossing is not at a public road. It was for the jury to determine whether the decedent should have been on the lookout, or should have warned the driver, or what, if anything, he should have done in the exercise of proper care under the circumstances; and, with the exception of inconclusive inferences, nobody knows what he did or failed to do. As we shall endeavor to show later, any negligence on the party of Riley Reed was not imputable to Ralph, and even if the jury concluded that Riley altogether failed to exercise ordinary care, they could not for that reason have found for the defendant, unless they were of the opinion that the negligence on his part was the proximate cause of the collision; and this they were not obliged to do under the evidence. There was ample evidence to support the verdict. See Sarman v. S. A. L. Ry. Co., 33 Ga. App. 315 (1), 125 S. E. 891.

2. In the fourth special ground of the motion for new trial, it is complained that the court erred in charging the jury as a matter of law that the negligence of Riley was not to be imputed to Ralph. Assuming that the plaintiff mother may have known that the boys were out together in the automobile, and that Riley was driving, she was not, according to the undisputed evidence, responsible for their going, and did no more than to silently acquiesce. Under these circumstances, even if the father had placed the boy Ralph in the custody of Riley, the negligence of the latter would not have been imputable to the former for the purpose of this action by the mother. But it is insisted that the boys had been engaged in the joint enterprise of carrying their sisters to the homes of neighbors, and that the enterprise was still in progress at the time of the collision, when they were returning to their own home. While in the testimony of the father was the expression, "They left home to carry my daughters, " and in the testimony of one of the sisters was the statement, "They carried me to the McGinnis house, " it is conclusive from all the evidence that Riley was the person in control of the automobile, and that the younger boy had no concern in the trip except to ride. He was not a party to any enterprise, but was simply riding as the guest of his older brother. The court did not err in giving the charge complained of. See Sarman v. Seaboard Air Line Ry. Co., supra; Civil Code 1910, § 3475. The rulings made in this division will dispose of ground 6 as well as ground 4 of the amendment to the motion for new trial.

3. A further complaint made in the motion for a new trial is that the court erred in charging the jury that the plaintiff alleged that the engineer and the fireman negligently "failed to discover the automobile with its back toward the train approaching clown said parallel McGinnis road towards said crossing, and ordinary care required that said engineer and fireman should keep a lookout ahead of said engine in order to discover any one who might go upon said crossing." when, as claimed by the defendant, this allegation had been stricken. It is true that the averment was stricken from the petition as originally drawn. Subsequently, however, a second count was added by amendment in which it was alleged that:

"The said engineer and fireman were both...