Opinion
39640.
DECIDED SEPTEMBER 11, 1962.
Action for damages. Floyd Superior Court. Before Judge Hicks.
Covington, Kilpatrick Storey, J. S. Kilpatrick, Carl Fredericks, for plaintiff in error.
Matthews, Maddox, Walton Smith, John W. Maddox, Oscar M. Smith, contra.
The court erred in directing a verdict for the defendant because there were issues of fact which should have been submitted to a jury.
DECIDED SEPTEMBER 11, 1962.
John R. Shuler sued the Southern Railway Company in the Superior Court of Floyd County to recover damages for personal injuries and property damage caused by the alleged negligence of the railroad in connection with a collision between the plaintiff's automobile and the defendant's engine at a public crossing in Rome, Ga., in which the plaintiff's automobile struck the engine to the rear of the engineer's cab. The petition alleged, among other things: "4. That on or about April 21, 1960, at or about 1 p. m., plaintiff was operating a Buick, 4 door, hardtop automobile on a public paved street in the City of Rome, Ga., said street being known and designated as Watson Street, while traveling in a southerly direction thereon, said plaintiff was then and there approaching a point on said street where same is crossed by the railroad tracks of the defendant, with said tracks at this point running generally in an easterly-westerly direction. 5. That the tracks of the defendant at said place are used in its operation of trains in and upon its said tracks for the purpose of transporting freight, switching of cars to and from various manufacturing plants, and for other purposes known to defendant, in the City of Rome, Floyd County, Ga., and is a public crossing. 6. That as plaintiff approached the northerly side of said tracks while continuing to travel in a southerly direction on and along Watson Street, he looked in a westerly direction and in an easterly direction, and not seeing any trains of defendant or engines being operated thereon, continued on preparing to cross said tracks. 7. That on and along the northerly and southerly side of the tracks and on defendant's right of way was at said time and place certain hedge, trees, weeds and bushes, as well as trees and bushes to the east and west side of Watson Street just on the north side of said defendant's railroad tracks, which obscured the view of defendant's tracks and trains for plaintiff and person traveling upon said public street. . . 9. That there were no warning signs of railroad crossing visible to plaintiff and no signal device in operation to warn plaintiff of defendant's train approaching from the east immediately prior to the approach of plaintiff to the northerly side of defendant's tracks. 10. That when plaintiff reached the tracks of defendant company, then and there preparing to cross same, a train of the defendant pulling one car, without any warning or signal whatever, came from the east and to petitioner's left, and into said railroad crossing, striking the automobile of plaintiff, said impact cutting off the front end of plaintiff's automobile back to the front of its engine, taking with defendant's train engine portions of plaintiff's automobile's front wheels, grill and generally the front end completely. 11. That at the time and place aforesaid plaintiff was driving said automobile at a speed of approximately 20 or 25 miles per hour while it was raining. 12. That at the time of said collision the engine of the defendant was being operated at a high and rapid speed for the time and place, to wit: a speed in excess of 15 miles per hour, and the agents, servants and employees of defendant's said train failed to blow its whistle or give any other signal of its approach. . . 14. That because of the fast and reckless speed of 30 to 35 miles per hour of the defendant's engine at the time and place, immediately after the collision said engine traveled on west and down the tracks for approximately 300 feet before stopping, during which time the engine wheels were being skidded on and along the tracks in an effort by the engineer to stop said engine which was at the time pulling only one car. 15. Said agents, employees and servants of the defendant failed to maintain a proper lookout for automobiles using said public crossing, and had said agents, employees and servants maintained a constant and vigil lookout, they could have seen plaintiff's automobile approaching said crossing inasmuch as the cab of the railroad engine where the defendant's engineer and firemen were or should have been stationed, was approximately 15 feet above the level of the tracks, thus giving an occupant thereof a clear view of the crossing and approaches thereto. 16. Petitioner shows that the defendants, its agents, servants and employees were guilty of negligence per se as follows: A. The engineer operating said locomotive as herein alleged failed to keep and maintain a constant and vigilant lookout along the tracks ahead of said engine as required by Georgia Code Section 94-506 and 507. B. Said engineer failed to exercise due care as herein alleged while approaching said crossing in order to avoid doing injury to any person or property which might have been on said crossing as required by Georgia Code Section 94-506, 507 and 701. C. Said engineer failed to give the required signal on approach of his train to said crossing by constantly tolling the bell of said locomotive as required by Georgia Code Section 94-507. D. By said defendant through its servants, agents and employees driving and running its train in excess of 15 miles per hour in the City of Rome, Georgia, in violation of Section 52, Article V, Speed Regulations of the City Ordinance of Rome, Georgia, which is as follows: `Section 52 — Maximum speeds on streets. Twenty-five miles per hour shall be the maximum speed, except as follows: (A) . . . (B) At railroad crossings for railroad trains — 15 miles per hour.' 17. Said defendant, by and through its agents, servants and employees, was guilty of further negligence as follows: A. In permitting bushes, hedges, trees and weeds and vines to remain at said public crossing as an obstruction to the view of travelers on said public street approaching said crossing. B. In failing to remove from said embankments the bushes, weeds, vines and hedges so as to allow travelers on said public street an unobstructed view of the tracks approaching said crossing. C. In failing to post and maintain at said public crossing a sign or device to give warning to travelers on the street of the presence of said crossing. D. In failing to give any warning by bell, whistle or otherwise, of the approach of said train until the collision occurred. E. In striking and injuring plaintiff and his property in the manner herein alleged. F. In failing to apply brakes to slow down or stop until the collision occurred and thereby not having said locomotive under control at said crossing."
The court directed a verdict for the railroad company and the plaintiff excepts to the overruling of his motion for new trial on the special ground that the question of the liability of the railroad should have been submitted to a jury, etc.
The court erred in directing a verdict and in overruling the motion for new trial. The plaintiff testified: that at the time of the collision it was raining pretty hard; that he was traveling at 20 or 25 miles per hour; that he looked to the west, his right, where he could see a good distance and that when he looked back to the left that was the time of the impact; that the northern side of the track had weeds and bushes all the way up to the road; that he could not see the train until it got right up to the crossing; that the southeast corner was grown up to the road; that there was a hedgerow and a big fence all the way up to the road; that just at the time he got to the crossing and looked to his left that was the time of the impact; that you could hardly see the train very well until you almost got up on the track; that he did not hear any bells ringing prior to his approach to the crossing; that he did not hear a train whistle at the time; that he had crossed the tracks before he had heard whistles and bells before and that he could have heard one if it had been ringing; that he was familiar with the crossing; that the train was in the city limits before the collision; that he could have seen a train coming on his right for a distance of two or three hundred yards; that the bushes which interfered with his vision were a lot higher than a car or about eight feet; that they came all the way up to the street; that they got lower, close to the road; that they were not eight feet high when he got down there; that he knew of all the obstructions that were there; that it was raining hard and he had his car windows closed and his windshield wipers working; that he did not see the train until the moment of the impact; that he could have stopped his car within the length of the car (about 18 feet); that he did not apply his brakes.
H. B. Crews, the engineer on the engine, testified: that he was pulling one car at the time of the collision; that the height of the engine cab above the track is seven or eight feet; that you could see a portion of Watson Street as you approached the crossing; that portion would be 75 or 100 feet before he got around the tree there; that you could not see the other portion because of a tree; that there was one large tree; that it would have taken ten to twenty seconds to pass the tree and see Watson Street; that as he approached the crossing when he first looked up he did not see the car; that when he got closer to the street he glanced up the street and the car was right there, right on them; that he was practically on the crossing when he saw the car; that he saw the car just before the plaintiff got to it; that when he first saw the plaintiff the plaintiff might have been fifty feet from the crossing; that he applied the brakes the first time he saw plaintiff; that witness was going about twelve to fifteen miles an hour; that after the collision the train went seventy-five to one hundred feet. He testified that he thought he blew the whistle twice but later stated that he made four short blasts of the whistle.
Mr. Joe Copeland, a member of the Rome Police Department testified: that he made an investigation of the collision; that when he got there the train was about 270 feet west of the crossing; that he stepped off the distance; that there was a cross sign there to indicate a railroad crossing but there was no signal like a bell or lights, etc. The engineer, recalled, testified that when his depositions were taken in February, 1960, he stated therein that he did not see the automobile until just about the time we got on the crossing; that the whistle was being blown and the bell was being rung as he approached the crossing. S. M. Barfield, the fireman on the engine at the time of the collision, testified: that the top of the engine was 12 or 15 feet from the ground; that the whistle was blowing and the bell ringing as the train approached the crossing. Mrs. Henry McCool, witness for the defendant, testified: that she lived at 14 Watson Street, Rome, Georgia, in April of 1960, about 75 to 100 feet from the crossing involved; that there were no houses between hers and the crossing; that at the time of the collision she was sitting on the front doorstep; that it was misting rain; that it wasn't raining hard enough to get wet; that it had been showering but at the time it had practically quit; that her doorstep faces the railroad; that she saw the train and plaintiff's car as they approached the crossing; that there were some bushes or shrubbery along the track there but not enough that you could not see the train; that you could see the train because the bushes were so scattered you can see between them; that she heard the whistle blowing and the bell ringing; that she was on the doorstep because the little girls she was keeping heard the whistle blow and they wanted to see the train; that she saw the collision; that she could tell there would be a collision, yelled that there would be and before she got it said, there was; that the car hit towards the back of the engine; that she didn't think the engineer would see the car approaching because it was too far up the street.
(1) The evidence raised an issue of fact as to whether there was negligence on the part of the defendant by reason of the fact that the train might have been found to have been obscured from the view of the plaintiff ( Atlantic C. L. R. Co. v. Clark, 93 Ga. App. 278, 91 S.E.2d 386); and (2) whether the railroad was negligent in not blowing a whistle or ringing a bell ( Southern R. Co. v. Riley, 60 Ga. App. 475, 4 S.E.2d 54; Seaboard Air-Line R. Co. v. Sarman, 38 Ga. App. 637, 639, 144 S.E. 810); and (3) whether the railroad was negligent in not having a warning device at the crossing to warn travelers of the approach of a train ( Central of Ga. R. Co. v. Barnett, 35 Ga. App. 528 (1a), 134 S.E. 126; Central of Ga. R. Co. v. Brower, 102 Ga. App. 462, 465, 116 S.E.2d 679; Georgia Northern R. Co. v. Hathcock, 93 Ga. App. 72 (6) 91 S.E.2d 145; Southern R. Co. v. Garland, 76 Ga. App. 729, 47 S.E.2d 93, and cases cited at p. 743); and (4) whether the railroad was negligent in approaching the crossing in excess of 15 miles per hour ( Southern R. Co. v. Alexander, 59 Ga. App. 852 (1), 2 S.E.2d 219; Davis v. Whitcomb, 30 Ga. App. 497 (13c), 118 S.E. 488). It does not appear from the conflicting testimony on the several issues that the plaintiff is barred from a recovery as a matter of law either because he was guilty of so great negligence in the first instance, or that his negligence was greater than the defendant's or that he should have discovered and avoided the defendant's negligence by the exercise of ordinary care. The issues should have been submitted to a jury.
The court erred in overruling the motion for new trial.
Judgment reversed. Bell and Hall, JJ., concur.