Williams v. Southern Ry. Co

• Decision Date: 20 February 1948
• Docket Number: No. 31855.,31855.
• Citation: 46 S.E.2d 593
• Parties: WILLIAMS. v. SOUTHERN RY. CO. et al.
• Court: Georgia Court of Appeals

46 S.E.2d 593

WILLIAMS.

v.SOUTHERN RY. CO. et al.

No. 31855.

Court of Appeals of Georgia,

Division No. 1.

Feb. 20, 1948.

Syllabus by the Court.

It appearing from the petition that the negligence alleged against the defendant, Southern Railway Company, was not the proximate cause of the death of the deceased, the trial court did not err in sustaining the demurrer and in dismissing the petition as to it.

Error from Superior Court, Fulton County; Bond Almand, Judge.

Suit by Georgia Williams against Southern Railway Company and another for the death of plaintiff's husband at a railroad crossing. To review a judgment sustaining named defendant's general demurrer to the petition and dismissing the case as to named defendant, plaintiff brings error.

Judgment affirmed.

Georgia Williams sued Southern Railway Company and M. P. Callaway, as trustee of the Central of Georgia Railroad, for damages in the Superior Court of Fulton County. She alleged that both of the defendant companies had negligently caused the death of her husband at a railroad crossing in Atlanta, Georgia, on May 19, 1944. Certain demurrers of the defendant Callaway, as trustee, were dealt with by the court, but the rulings thereon were not excepted to and are not now involved. A general demurrer of Southern Railway Company to the petition of the plaintiff after it had been amended was sustained and the case dismissed as to it. The only exception here is to that ruling.

The amended petition alleged in substance that the defendants had injured and damaged the plaintiff in the sum of $50,000; that on May 19, 1944, at about 7:30 p. m. the plaintiff's husband, Marvin Williams, left his home to go to a meeting on High Street in Atlanta, Georgia; that in order for him to reach said place it was necessary that he cross certain tracks of the defendants on Castleberry crossing, a public crossing in a thickly populated section of the City of Atlanta, regularly used by the public; that each of the defendants havecertain tracks extending in a northerly and southerly direction across said crossing, two tracks particularly described being one of the Southern Railway Company, designated as its number one lead track, and one of the Central of Georgia Railroad to the east and adjacent to the other, known as its southbound main line, the distance between the east rail of the former and the west rail of the latter being approximately 94 inches; that although the crossing was regularly used by the public, neither of the defendants had posted thereon any flagman or watchman, nor did either defendant maintain at said crossing any standard automatic gates or signal devices sufficient to protect the public from the danger of approaching trains as contemplated by Section 77-102 of the ordinances of the City of Atlanta; that as her husband crossed the track of the Central of Georgia Railroad he was struck by the engine of its southbound passenger train, number 94, traveling at a negligent rate of speed in excess of 50 miles per hour, and that "said engine did strike her husband and knock his body violently westwardly toward defendant Southern Railway Company's said number one lead track without any warning of any kind", hurling him in the dirt and cinders between the said tracks and "up to and almost against the east rail of said Southern Railway Company's said number one lead track."

On information and belief the plaintiff alleged that her husband was standing between the two tracks approximately 22 inches from the sides of the cars of each company, each of which companies had a train operating across the said crossing at the instant he was standing there; and that the excessive speed of the Central of Georgia train created a suction which drew the body of her husband into said train without fault on his part; that at the instant the husband of the plaintiff was knocked by the Central of Georgia engine, as aforesaid, the Southern Railway Company had a cut of 60 cars operating over its lead track number one moving northward, the exact number of which had passed the crossing at that instant being unknown to the plaintiff, which cut of cars caught her husband "and dragged his person northward over said Castleberry crossing, and in the process of so dragging his said person, his body was tumbled and twisted in such a way that his chest was crushed under the weight and wheels of said Southern Railway Company's said cut of cars and he was killed instantly". It was further alleged that the cars of the Southern Railway Company in question were being operated at a speed in excess of 10 miles per hour, contra the ordinance of the City of Atlanta; that the injuries inflicted by the Central of Georgia Railroad would have soon proved fatal, but that the chest injury inflicted on her husband by the Southern Railway Company's cars produced instant death.

The plaintiff alleged also that the negligence which directly and proximately caused the death of her husband was the failure of both of the defendants to maintain a flagman or watchman at the crossing, or to install, operate and maintain standard automatic gates or signaling devices sufficient to protect the public from danger, in accordance with the ordinance of the City of Atlanta, the failure of each to give her husband warning or notice of the approach of the trains, the failure of each engineer to keep a constant and vigilant lookout ahead, the operation of each of the trains by each of the defendants at the "very rapid, reckless and illegal rate of speed in excess of 25 miles per hour or more, in a very thickly settled and populated and heavily traveled section of the City of Atlanta", in violation of the ordinance of the City of Atlanta fixing the speed limit of railroad trains across grade crossings at 10 miles per hour, and "that if said Southern Railway Company's said cut of cars had not been traveling in excess of said 10 miles per hour as the law requires it would not have churned and twisted her husband's person and fatally injured his chest which finished killing him instantly, and that such violation of Section 77-103 of the official ordinances of the City of Atlanta, then valid and subsisting, proximately caused said Southern Railway's train to crush and sever the chest of her husband, which was negligence per se."

We think the foregoing statement contains enough of the material facts alleged to illustrate and plainly present the only question for decision.

William A. Thomas, of Atlanta, for plaintiff in error.

W. Neal Baird, Neely, Marshall & Greene and Powell, Goldstein, Frazer & Murphy, all of Atlanta, for defendants in error.

PARKER, Judge.

This case presents for our consideration the sole question of whether the plaintiff's amended petition sets forth a cause of action against the Southern Railway Company. Counsel for the...