Opinion
34025.
DECIDED APRIL 19, 1952. REHEARING DENIED MAY 9, 1952.
Action for damages; from Putnam Superior Court — Judge Carpenter. February 16, 1952.
Whitman Whitman, Erwin Sibley, A. R. Lawton, for plaintiff in error.
Smith, Field, Doremus Ringel, Alex Smith Jr., contra.
1. The petition did not show that the plaintiff was negligent and that such negligence was the proximate cause of the plaintiff's injuries, and the court did not err in overruling the general demurrer thereto.
2. The court did not err in overruling the special demurrer to the petition.
DECIDED APRIL 19, 1952 — REHEARING DENIED MAY 9, 1952.
W. L. Tyson sued Central of Georgia Railway Company for injuries received in a collision between a locomotive of the defendant and the plaintiff's automobile, allegedly caused by the negligence of the defendant. The petition alleged substantially: that on September 12, 1950, at approximately 8 p. m., the plaintiff was driving his automobile north along U.S. Highway 441 at a point two and one-half miles south of Eatonton, Putnam County, Georgia; that at said place the railroad tracks of the defendant make a grade crossing of said highway, the crossing occurring at the apex of a gentle rise in the highway; that the tracks cross the highway at an acute angle of approximately thirty degrees, and that, about four hundred feet north of the crossing, the tracks turn to run parallel to the highway some two hundred feet to the east of the highway, but that the tracks do not parallel the highway south and west of the crossing; that the tracks at the crossing are not visible to travelers on the highway heading north; that bushes, trees, and stacks of lumber on the east side of the highway prevent vision of an approaching train for persons traveling north on the highway until the train has completed the turn some four hundred feet northeast from the said crossing and has started into the straight stretch approaching the crossing; that at said time and place it was after sundown and was dark, and that as the automobile he was driving was traveling north up the slight incline toward the crossing at a speed of thirty-five to forty miles per hour, at a point approximately one hundred fifty feet south of the crossing, the plaintiff suddenly saw a single headlight through the trees and bushes, which appeared to be another car with one headlight out approaching him around what appeared to be a curve at the crest of a hill; that the plaintiff was not familiar with the crossing or the general locality of the crossing, and had no knowledge or notice of an approaching train or knowledge of the fact that he was approaching a railroad crossing; that neither the plaintiff nor the other passengers in his car heard any sound from a whistle or bell, or other warning of the approach of a train, nor did any of them have knowledge that they were in fact approaching a railroad crossing; that, an instant after first observing the single headlight apparently approaching him, the plaintiff recognized it as a train headlight, and vigorously applied the brakes in an effort to halt his automobile; and that said automobile had just come to a halt at a point which he thought was south of the crossing, but which, in fact, was squarely on the crossing, when the automobile was struck violently on the right front side by the engine of the defendant; that the defendant through its engineer was familiar with the conditions existent at the grade crossing and knew the location and character of the crossing; that no warning whistle was made by the train, warning of the approach of a train, until an instant before the collision; that the plaintiff, being unfamiliar with the crossing, had been unable to judge at which point the railroad crossed the highway, after he became aware that in fact a train was approaching, due to the acute angle of its crossing and further due to the location of the crossing at the crest of the grade of the highway and to the particular and acute angle of the tracks with the highway; that he had not been able to determine what in fact the approaching headlight represented until too late to stop before reaching the crossing; that the approaching headlight, in addition to confusing him, distracted and partially blinded him temporarily and created for the plaintiff a surprising and grave emergency; that the automobile was struck and knocked and dragged almost backward in the direction to the southwest some one hundred twenty-five feet; that prior to the collision, when the engineer in charge of the defendant's locomotive and cars had reached a point about four hundred yards distant from the crossing, he carelessly and negligently refused and neglected to blow the whistle of the locomotive and to keep blowing it until he reached the crossing, and in fact did not blow the whistle until an instant before the impact, and the engineer failed to keep a constant and diligent lookout along the track ahead of his engine, all in violation of Code § 94-506, which constituted negligence per se; that, by reason of the failure of the engineer to keep a constant and diligent lookout, the train without warning and without fault on the part of the plaintiff collided with the automobile with great force; and that because of the collision the plaintiff was injured in enumerated particulars. The defendant's general and special demurrers were overruled, and it excepted.
1. The defendant contends that the petition, properly construed, shows that the injuries received by the plaintiff were proximately caused by his own negligence. To support such contention it argues: that the plaintiff did not allege whether the crossing was a safe or unsafe crossing, therefore it must be assumed that the crossing was properly marked with warning signs warning motorists of the crossing; that either the plaintiff saw the signs and disregarded them or he was without lights burning to see the warning signs "or with insufficient lights to see them, and that in utter disregard thereof he approached the crossing at the unlawful speed at said place `of 35 to 40 miles per hour' and too fast for him before it was too late to identify that the locomotive headlight was not a motor vehicle with one light; and hence that the alleged `grave emergency' (paragraph 14) prompting him to apply his brakes and his stopping `squarely on the track," as the last clear chance to avoid the collision — was self-created and was the sole proximate cause of the collision." This contention is clearly without merit. The requirements of Chapter 95-18 of the Code as to safe and unsafe crossings have no place in a civil action for damages such as this. Code, § 95-1808; Powell v. Crowell, 63 Ga. App. 890 ( 11 S.E.2d 918). We cannot say as a matter of law that the petition showed on its face that the plaintiff was guilty of any negligence. Even if the petition did show negligence on the plaintiff's part, such was not shown to be the proximate cause of the collision, and since the petition alleged negligence per se on the defendant's part by a violation of Code § 94-506, it would present a question of comparative negligence, which would be a question for a jury. The petition alleged a cause of action as against a general demurrer. See Central of Georgia Ry. Co. v. Larsen, 19 Ga. App. 413 ( 91 S.E. 517); Southern Railway Co. v. Slaton, 41 Ga. App. 759, 760 (3) ( 154 S.E. 718).
2. The defendant contends that its special demurrer to the allegation that the plaintiff was damaged in the sum of $5000 for the loss of services of his wife should have been sustained because such allegation was indefinite, uncertain, and a conclusion of the pleader without sufficient facts alleged to support it. The contention is without merit. The plaintiff was not required to itemize or detail the services the loss of which he sued for. Metropolitan St. Ry. Co. v. Johnson, 91 Ga. 466, 471 ( 18 S.E. 816).
The court did not err in overruling the demurrers.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.