Summary
In Southern Ry. Co. v. Parkman, 61 Ga. App. 62 (5 S.E.2d 685), the plaintiff, who was walking alongside the track, turned left to cross it; he admitted that, had he looked back as he did so, he would have seen the train approaching.
Summary of this case from Central of Ga. Ry. Co. v. GibsonOpinion
27746.
DECIDED NOVEMBER 13, 1939.
Damages; from Muscogee superior court — Judge McLaughlin. April 27, 1939.
R. M. Arnold, for plaintiff in error.
W. R. Flournoy, Battle Smith, Hunt C. Maxwell, contra.
1. The petition set forth a cause of action, and the court did not err in overruling the general demurrers.
2. Under the law and the evidence a finding was demanded as a matter of law that the plaintiff could, by the exercise of ordinary care, have avoided the negligence of the defendants, and that his own negligence was the proximate cause of his injury and damage.
3. The special ground of the motion for new trial is without merit.
DECIDED NOVEMBER 13, 1939.
W. F. Parkman filed suit against Southern Railway Company and Henry Harris to recover damages for personal injuries sustained by him, the petition alleging that the Southern Railway Company uses a railroad track which extends into the City of Columbus, Georgia, and operates upon and along said track numerous locomotives and cars in the transaction of its business; that on March 3, 1938, Henry Harris was employed by the Southern Railway Company as an engineer, and that the injuries of the plaintiff, as alleged in the petition, were caused by the joint negligence of the defendants in the operation of a train upon said track; that a portion of the line of the track runs along a public street, known as "Railroad Avenue," the said track entering said avenue at 19th Street and extending southerly along the middle of the avenue and curves and runs in a southwesterly direction towards 18th Street; that the roadway of said avenue lies west of said track, is improved, and is maintained in a state of repair by the City of Columbus; that various residences are located on said avenue between 18th and 19th Streets and on each side of the railroad track and of the avenue through which said track runs; that for more than twenty years the roadway has continuously been commonly, frequently, and notoriously used by pedestrians and for vehicular traffic, and particularly has the roadway been so used by persons going to and from said residences, such use being known to defendants and was on March 3, 1938, known to them; that pedestrians who desire to enter any such residence which is located east of said track are accustomed to proceeding on said roadway to a point opposite such residence and then walking across the track towards the residence, and this custom is and has for years been well known to the defendants; that a ditch immediately east of said track causes any other means of ingress to or egress from such residences to be impracticable; that plaintiff, in pursuance of his business, entered the roadway from 19th Street at about 8 p. m. on the evening of March 3, 1938, for the purpose of going to a residence known as "1810 Railroad Avenue," which residence is located east of the track; that he walked southerly along the roadway until he reached a point opposite said residence, and then turned to his left and started across said track for the purpose of reaching the said residence; that when he stepped upon the track he was immediately struck by the front of a locomotive of Southern Railway Company which was then being operated by the defendant Harris, who was acting in the course and scope of his employment by Southern Railway Company, in a southerly direction along said track; that plaintiff was not aware of the approach of the locomotive before he was struck by the same; that because of the curve in the track heretofore mentioned the headlight of the locomotive did not shine upon the track and the same was thrown to the rear and westerly of plaintiff, the locomotive approaching plaintiff from the rear, and that neither Harris nor the Southern Railway Company, acting by and through the said Harris, gave plaintiff any warning of the approach of the locomotive, which was then being operated by defendants at a high and dangerous rate of speed in excess of forty miles an hour; that the locomotive was coasting, that is, was being operated by defendants without the application of power other than the momentum of said high rate of speed, and was not making the noise usually incident to the operation of a train or locomotive; that the track runs through the said avenue parallel with and contiguous to the east line of the described roadway, the crossties are elevated above the level of the roadway and the rails of the track are affixed to said ties, and the ditch immediately east of the track is uneven and rough; that as plaintiff turned to his left, as aforesaid, he turned at an angle of less than ninety degrees and his back was still towards that section of the track upon which the train, without the knowledge of the plaintiff, was approaching; that the track at the time and place was extremely dark, and plaintiff's whole attention was absorbed in undertaking to safely cross the elevated ties and rails and the ditch immediately east thereof, and that because of this fact and the fact that the headlights of the locomotive were not thrown upon the track and the train was coasting, as aforesaid, and of the fact that no warning was given plaintiff of the approach of the train, he was without knowledge, when he stepped upon the track, that the train was in fact approaching him from the rear at said high and dangerous rate of speed.
The petition set forth described injuries and damage, and alleged that the defendants were jointly guilty of the following concurrent acts of negligence: (a) In failing to anticipate plaintiff's presence upon the track at said time and place and to take precautions against inflicting injuries upon him; (b) in failing to have said locomotive under control when approaching the place where plaintiff was injured; (c) in running said locomotive at a high and dangerous rate of speed in excess of forty miles per hour; (d) in failing to keep a vigilant lookout ahead of said locomotive; (e) in failing to warn plaintiff by bell, whistle, or other signal of the approach of the locomotive.
The defendants, jointly and severally, filed a general demurrer to the petition on the grounds that it did not set forth a cause of action against the defendants, either jointly or severally; that it affirmatively appears from the petition that the injuries and damage alleged to have been sustained were not caused and were not contributed to by any act, fault, or negligence of the defendants, either jointly or severally; that it affirmatively appears from the petition that the injuries and damage alleged to have been sustained by the plaintiff were caused solely by his own negligence; that it affirmatively appears from the allegations of the petition that the plaintiff knew or, by the exercise of ordinary care, could have discovered the alleged negligence of the defendants, and that thereafter, by a like degree of care, he could have avoided the consequences to himself of the alleged negligence of the defendants. The court overruled the demurrer and the defendants duly filed their exceptions pendente lite.
The defendants filed, jointly and severally, their answer, denying the material allegations of the petition, and also specially pleaded that the injuries and damage alleged to have been sustained by the plaintiff, if sustained, were neither caused nor contributed to by any act, fault, omission, or negligence on the part of the defendants, either jointly or severally, were caused solely by the act, fault, conduct, and negligence of the plaintiff himself, and could have been avoided by the plaintiff by the exercise of ordinary care and diligence.
On the trial of the case the evidence was substantially as follows: W. F. Parkman, the plaintiff, testified: "I am forty-four years old. I live at 725 19th Street, Columbus, Georgia. . . That has been my home since 1919, but I haven't lived there continuously . . . My work consists of soliciting and collecting life-insurance premiums. A certain territory in the City of Columbus is assigned to me. That is termed a debit. . . I am familiar with the roadway between 18th and 19th Streets known as Railroad Avenue. That is within my debit. In soliciting insurance I go from house to house. . . The last call I recollect making on the evening of March 3, 1938, before I went to the place where the collision occurred . . was at Mr. Moore's barber shop. . . When I left Mr. Moore's my day's work was about finished, other than Mr. Crouch's call. I was going to Mr. Crouch's house. He resides at 1810 Railroad Avenue. I had previously been there in the daytime soliciting life insurance and talked with Mrs. Crouch. . . In the morning of March 3, 1938, I went up to Mr. Crouch's barber shop for the purpose of talking with him about the matter. . . The only thing I could do was to make an appointment, so I asked Mr. Crouch about what time he usually got home. On the evening of that date, and shortly before I was injured, I crossed Railroad Avenue and parked my car north of 19th Street, west of the railroad. . . On 19th Street I crossed the railroad and was traveling west and parked my car north of 19th Street and north of Railroad Avenue. I got out of my automobile and proceeded down Railroad Avenue. I have been familiar with Railroad Avenue about ten years. . . Mr. Tim Crouch and his family live in house number 1810 on the east side of the street and on the east side of the track. . . The roadway is adjacent to the track, and is between the railroad and the negro houses on the west side. I did not at any time abandon walking straight down that roadway until I was a little north of 1810 Railroad Avenue, the house in which Mr. Crouch then lived, and there I turned to the left. I was on my way to Mr. Crouch's. It was very dark. Before I got directly in front of Mr. Crouch's house I made an angle turn to my left. I would say that the angle turn was about forty five degrees. I then walked towards the track. It was very dark and it was rough. The crossing extended over the rails, over the dirt. At that place the crossties extended above the roadway, varying distances anywhere from five to ten inches, I expect. The rails on top of the crossties extended across the crossties, I would say, six inches. On the east side of the track was a ditch. As I started across the track I was looking down to the ground trying to make my way across the way without stumbling. . . Prior to that time I did not hear any locomotive engine bell rung, nor did I hear any locomotive whistle of any nature sound. I did not see any lights of any kind on that track as I stepped upon it and started across. While angling across to the track, I would say I took two, three, or four steps. I don't know how many. Just in an instant I realized I was in danger. I don't know whether it was the racket or light or what it was that attracted my attention. I made an effort to get off and was struck. That is all I remember. Since that time I have been up there and watched the train as it passes this point. The track runs the same way. As the train approaches this place where I attempted to cross, the lights of the locomotive shine on the negro houses to the right and on the west. On the night I was hurt I did not see the light. The track was very dark. As I started on the track I did not know a train was approaching. . . I was struck as I attempted to whirl off. . . When I got down to a point just a little north of number 1810 I went on the track. As I walked down Railroad Avenue I was about four or five feet from the track. I walked down four feet from the track. The train was going south in the same direction I was going. There is nothing wrong with my hearing that I know of. There is nothing wrong with my sight. From the time I left my automobile until I went to make the turn to go to number 1810 I did not look to see if the train was coming. . . I never looked down the track this way to see if the train was coming. . . It was around eight o'clock at night. . . The lights from the engine were deflected on the houses on the west. Had I looked back I could have seen the headlight. If I had looked back I could have seen the train. . . Before I was hurt and before I attempted to cross the track I was about four feet from the track. . . I think I was in a place of safety. If at that point I had looked back, I could have seen the headlight of a train rounding the curve for a distance, say, of fifty or sixty feet. . . I knew I was about to cross the railroad track. I knew the railroad track was a place of danger. I knew the rails were elevated. I knew there was danger there. I knew trains were likely to come along there at any time. I knew they were subject to come along when they wanted to."
To the question, "And notwithstanding you knew that the train was likely to come along from behind you, you didn't stop, look, or listen at all?" the witness answered "No, sir, I just went blindly on the track in front of the train." He further testified: "I live on 19th Street about two blocks from the railroad crossing. I was familiar with this track and the territory along there. I had lived on 19th Street about seven years. I didn't know the schedule of the passenger trains. I did not know one passed along there about that time." To the question, "I will get you to say whether you testified to this in your deposition: `Did you know that a passenger train came down at that time of night? Yes, sir, about that time.' Did you swear to that when you gave your deposition some time ago?" the witness answered "I did. . . I knew a train came into Columbus sometime in the early part of the night. I mean by early part of the night between seven and nine. It was between seven and nine when I went on this track. I did not know a passenger train passed there about eight o'clock." He further testified: "I had been to this house a number of times before. I knew all about the conditions there. I was thoroughly familiar with them. . . I knew all about the situation from 19th Street clear through to 18th Street. . . From the time I got out of my automobile until I got to the track I never at one time looked back to see if a train was coming. If I had looked back at any point between where I was struck and 19th Street, I could have seen a train rounding the curve for some distance. . . The train came down upon me noiselessly and I did not hear it. . . Other than the danger of walking on to the track with the elevated crossties, which I have described, and the elevated rails and the ditch on the other side, other than that there is no danger if a train is not there. . . The danger was those crossties and track and ditches I was trying to cross. I was looking with my eyes to the ground trying to pick out."
John E. Simmons, who lived next door to 1810 Railroad Avenue, testified that there is heavy traffic along the avenue until about ten o'clock at night; that people go across the track to 1810 Railroad Avenue; that he was sitting on his porch on the night of the accident and heard the train when it left Jordan City, and that he judged it was traveling at about 25 to 35 miles an hour when he saw it crossing 18th Street, after he had left the porch and had come back, and could tell its speed because he saw the lights and the way it was traveling, unusually fast that night as to the way it generally ran; that he heard it puffing as it left Jordan City, and from that time until he saw it crossing 18th Street he did not hear any whistle, bell or any warning of any kind; that as the train approaches Columbus from Atlanta on the curve and north and opposite number 1810 Railroad Avenue the headlight shines to the right-hand side, coming down on the houses as it comes around the curve and he doesn't think it shines in the middle of the track on that curve; that he would say the train was coasting that night and thinks the track is a little downgrade in the vicinity of 1810 Railroad Avenue.
Henry Harris, who was the engineer on the train at the time of the injury to the plaintiff, testified that the train was running about eight miles per hour between 19th and 18th Streets, the bell ringing and the whistle blowing along there; that he turned on the automatic bell-ringer and started ringing about a mile north of Jordan City; that he was sitting on the engineer's box on the right-hand side and looking out ahead, did not see any one, and does not recall having had an accident between those streets that night; that he has been to the vicinity and made observations with reference to the light of the locomotive; that he saw the track as a train approached, coming south; that he was standing right opposite the house at 1810 Railroad Avenue and could see the light of the locomotive for a distance of 250 feet; that as to whether the light of the locomotive at any time shone on the track where the witness was standing — it did, it was shining on the track ahead of him; that coming around the curve no light was reflected on the right side; that there was light between the rails and also on the houses on the right; that he had never seen anybody cross the tracks between 18th and 19th Streets; that when he came around the curve he was coasting, not using steam, did not see the plaintiff, and did not know that he had been hit until informed after reaching the station.
Nat Hurst, fireman, testified that he did not see the plaintiff or know that the accident had occurred until later; that the speed of the train was, as he recalls, not more than eight or ten miles an hour; that the bell was ringing and the whistle blew at every crossing from Jordan City; that he had seen people walking up and down the track and had seen them go across the track in the vicinity of the accident; that the train was just coasting along; that he did not see anybody at all and was looking out that night.
Marshall Blackmon testified that he was a civil engineer and at the request of counsel for the Southern Railway Company made certain measurements in connection with the location and other physical facts between 19th and 18th Streets, and identified a map which he made, and which was later introduced in evidence, and which showed the distances and locations as determined by him. He testified, among other things, that in front of 1810 Railroad Avenue an object is visible north for a distance of 421.5 feet up the track (the direction from which the train came).
Y. R. Norris testified that he was conductor on the train, did not know of the accident until he had reached his hotel in Columbus and was informed of it by a special agent of the company; that the train, while running between 19th and 18th Streets, was proceeding at about ten or twelve miles an hour, the whistle blowing and the bell ringing continuously; that he remembers the speed of the train because it was his duty to watch it and he did so; that it takes about nine minutes for the train to run from Jordan City into the Union Station in Columbus; that he never did see people going into the houses on the east side of the track.
F. C. Prow testified that he was a flagman on the train on the night the plaintiff was injured, but did not learn of the accident until the next morning; that the train was running about ten or twelve miles an hour, the bell ringing and the whistle blowing.
F. L. Parker testified that at the request of a representative of the defendant railway he made observations between 19th and 18th Streets with reference to the headlight of an approaching locomotive; that he took a position about three feet from the railroad, on the far side of the track, facing number 1810 Railroad Avenue, and that he "kept looking for the light to see when it was coming. You could see the reflection of the light on the house quite a way before you could see the light. I kept watching, and when the light came into view itself I turned and looked at the house like this and observed the track down here to see when this light would play down on the track, and the light came down on the track. When the light came down on the track, the engine was about midway of 19th Street, about 155 or 160 feet to the left. The engine was about middle way of 19th Street when that light came down on the track and all over the whole business on a stretch, down the track." He further testified that he saw the light deflected on the buildings north of 19th Street; that it would be deflected to some extent on the buildings south of 19th Street, but not wholly beaming right on the house; that the light spreads out and is very noticeable, even with one's back turned, because it flares up around one's head; that if a person walks diagonally across the track, the light would be all over the track, would be up around his body and head, would spread around his feet.
The defendant introduced in evidence five photographs showing various scenes at and near the place on the railroad track where the plaintiff claimed to have been struck and injured by the train of the Southern Railway Company, these photographs and written explanations attached being admitted by agreement of the parties.
On the hearing of the demurrer the plaintiff admitted, through his counsel, that at the time of his injury he was a trespasser. On the trial of the case the plaintiff made the same admission, and also admitted that he had failed to prove that Railroad Avenue was a public street. The jury returned a verdict in favor of the plaintiff. The defendants' motion for new trial was overruled, and they excepted to that judgment and to the overruling of the demurrer.
1. The plaintiff was injured at a place on the railway tracks where he had no right to be. He was not injured at a public crossing, and was a trespasser, even though it is alleged that the defendants were aware of the fact that people crossed "Railroad Avenue" at the point where the plaintiff sustained his injury and that this was done without their disapproval. "The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way of a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute a person so using the track a licensee of the company; and in the absence of the company's permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser." Hammontree v. Southern Railway Co., 45 Ga. App. 728 ( 165 S.E. 913); Southern Railway Co. v. Barfield, 112 Ga. 181 ( 37 S.E. 386). In fact, it is conceded by counsel for the plaintiff that at the time and place of the injury the plaintiff was a trespasser. What is the duty of the defendants towards a trespasser? "Ordinarily the only duty owing by a railway company to a trespasser upon or about its property is not to wantonly or wilfully injure him after his presence has been discovered." Hammontree v. Southern Railway Co., supra; Young v. South Georgia Railway Co., 34 Ga. App. 537 ( 130 S.E. 542); Central of Georgia Ry. Co. v. Stamps, 48 Ga. App. 309 (3) ( 172 S.E. 806); Ashworth v. Southern Ry. Co., 116 Ga. 635 ( 43 S.E. 36, 59 L.R.A. 592). "Where a number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of this custom, are bound, on a given occasion, to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence." Bullard v. Southern Railway Co., 116 Ga. 644 ( 43 S.E. 39); Ashworth v. Southern Railway Co., supra; Western Atlantic R. Co. v. Michael, 175 Ga. 1, 10 ( 165 S.E. 37).
Wilful and wanton misconduct is not alleged against the defendants, and "The mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and a time when it was their duty to anticipate the presence of trespassers, and thereafter to take such needful and proper measures for his protection as ordinary care might require, might amount to a lack of ordinary care on the part of the railway company, but would not, in and of itself, amount to wilful and wanton misconduct." Hammontree v. Southern Railway Co., supra; Lowe v. Payne, 156 Ga. 312 ( 118 S.E. 924). The duty of the railway company to discover the presence of one upon its right of way, when it may reasonably be anticipated that persons may be present thereon, does not relieve him of the duty to exercise ordinary care for his own safety. Southern Railway Co. v. Slaton, 41 Ga. App. 759 (2) ( 154 S.E. 718); Leverette v. Louisville Nashville Railroad Co., 38 Ga. App. 155 ( 142 S.E. 905); Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (5) ( 127 S.E. 274). "The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence." Western Atlantic Railroad Co. v. Ferguson, 113 Ga. 708 ( 39 S.E. 306, 54 L.R.A. 802), and many others. It is, of course, well settled that one can not recover for the negligence of another if by the exercise of ordinary care and diligence he could have avoided the consequences to himself of such other person's negligence. There is also of force in this State a rule of comparative negligence, under which if both parties are at fault, with respect to the injury sustained by the plaintiff, and the latter could not by the exercise of ordinary care and diligence have avoided the consequences to himself of the other's negligence, then notwithstanding that he may have been negligent he would be entitled to recover if his negligence was less than that of the other party, but the amount of damages shall be diminished in proportion to the amount of fault attributable to him. "Questions of negligence, proximate cause, and failure to exercise ordinary care to avoid the consequences of another's negligence are questions of fact which are ordinarily for determination by a jury under proper instructions from the court as to the applicable principles of law, but in plain and indisputable cases the court may determine them as a matter of law." Dodson v. Southern Railway Co., 55 Ga. App. 413 (8), 419 ( 190 S.E. 392). There being no statute in this State requiring one to stop, look, and listen before crossing a railroad track, it is not negligence per se where one fails to do so.
Applying the above-stated principles of law to the allegations of the petition in the present case, we think that a cause of action was set forth against the defendants and the court did not err in overruling the general demurrers. Undoubtedly acts of negligence were alleged against the defendants, and a jury question is presented as to whether or not the plaintiff was negligent in crossing the track of the defendant railway at the time and place mentioned, and whether or not by the exercise of ordinary care he could have avoided the consequences to himself of the defendants' negligence. It is alleged that the plaintiff was not aware of the approach of the train, that it was coasting at a dangerous rate of speed, more than forty miles an hour, not making the noise usually incidental to the operation of a train or locomotive, that the headlight of the locomotive did not shine upon the track but to the rear and westerly of the plaintiff, and that no warning of any kind was given him by the defendants. It can not be said as a matter of law, as contended by the plaintiff in error, that from the allegations of the petition the plaintiff was negligent or that by the exercise of ordinary care he could have avoided the consequences to himself of the defendants' negligence.
2. We think, however, that under the evidence it must be said as a matter of law that the proximate cause of his injury was the plaintiff's own negligence, and that by the exercise of ordinary care he could have avoided the consequences of the defendants' negligence. It appears that while the plaintiff stated that he did not know that the train "passed along there about that time," the time when he was injured, he testified: "I knew a train came into Columbus some time in the early part of the night. I mean by early part of the night between seven and nine when I went on this track." He further testified: "There is nothing wrong with my hearing that I know of. There is nothing wrong with my sight. From the time I left my automobile until I went to make the turn to go to number 1810 I did not look to see if the train was coming. . . I never looked down the track this way to see if the train was coming. . . It was around eight o'clock at night. . . The lights from the engine were deflected on the houses on the west. Had I looked back I could have seen the headlight. If I had looked back I could have seen the train. . . Before I was hurt and before I attempted to cross the track I was about four feet from the track. . . I think I was in a place of safety. If at that point I had looked back, I could have seen the headlight of a train rounding the curve for a distance, say, of fifty or sixty feet. I knew I was about to cross the railroad track. I knew the railroad track was a place of danger. I knew the rails were elevated. I knew there was danger there. I knew trains were likely to come along there at any time. . . I just went blindly on the track in front of the train."
Construing the testimony most strongly against the plaintiff, although he stated that he did not know that a train would come along at eight o'clock he knew that the train might come along at any time between seven and nine o'clock that night, the interval in which he attempted to cross the track. Having such knowledge he failed to use his sense of sight to determine the close proximity of the train, and, instead, allowed himself to become absorbed or engrossed in the undertaking of crossing the track, and was oblivious to everything else. It is contended by counsel for the plaintiff that the elevated track and crossties, the ditch on the one side, and the darkness of the night, required great care and attention to pass over them without injury, and that his engrossment in this respect palliates or justifies any failure on his part to contemplate the probability of an approaching train. We are cited to cases dealing with the principle contended for, but they relate to situations where the engrossment of the complainant was brought about by a dangerous, active force put in operation by the defendant, such as the running of a train from an opposite direction, which prompted the plaintiff, in the situation in which he was placed, to take action to safeguard himself therefrom, and in consequence of which he negligently subjected himself to another danger.
It could not reasonably be contended that the mere engrossment of one could palliate or justify his negligence. If a person, for example, were walking on the track of a railway and became engrossed in a near-by circus parade or the progress of an airplane, his conduct in allowing himself to be diverted from his duty of avoiding the danger of an approaching train would aggravate rather than extenuate negligence on his part. The plaintiff in the present case was not, by reason of the track, crossties, ditch, or the darkness of night required to act at all. He was admittedly in a place of safety before he attempted to cross the track. No act of the defendants prompted him to abandon it. What he did was self-instigated. His engrossment was in no wise contributed to by the defendants, and from it he can not justly seek any palliation or justification of any negligence on his part. By the exercise of ordinary care he could, in our opinion, have avoided the consequences of the defendants' negligence, and his own negligence was the proximate cause of his injury and damage. The court erred in overruling the general grounds of the motion for new trial.
3. A special ground of the motion for new trial assigns error on a portion of the charge of the court to the effect that it was not applicable to a "voluntary trespasser," as was the plaintiff in the present case. This contention is without merit, but as the case is being reversed on other grounds any detailed discussion is deemed unnecessary. It is further contended in this ground that certain language of the portion excepted to had the effect of instructing the jury that the defendants should be discharged from liability under the circumstances stated in the charge only in the event that the plaintiff could, by the exercise of ordinary care and diligence, have avoided the defendants' negligence, and that it had the effect of eliminating from the jury's consideration the defense of the defendants, supported by evidence, that the injury of the plaintiff was due solely to his own fault and negligence. Inasmuch as in connection with the portion complained of and immediately thereafter the court charged the jury, "If you should find from the evidence that the plaintiff was negligent, and that such negligence was the proximate cause of his injury, then the plaintiff can not recover of the defendant. If you find that he received the injuries, gentlemen, but it was his negligence and not that of the defendant, he could not recover of the defendant," the objection is not well founded.
Judgment reversed. Felton, J., concurs.
The plaintiff testified as follows: "As the railroad track crosses on 19th Street, it is on a deep curve and continues that curve, I would say to 18th Street. . . On the right, or west, is Railroad Avenue, a roadway. . . The roadway is adjacent to the track and is between the railroad and the negro houses on the west side. . . I was on my way to Mr. Crouch's. It was very dark. Before I got directly in front of Mr. Crouch's I made an angle turn to my left. . . I then walked toward the track. It was very dark and it was rough. The crossing extended over the rails — over the dirt. . . As I started across the track I was looking directly down to the ground trying to make my way across the way without stumbling. I remember stepping on the track. Prior to that time I did not hear any locomotive engine bell rung, nor did I hear any locomotive whistle of any nature sound. I did not see any lights of any kind on that track as I stepped upon it and started across. . . As the train approaches this place where I attempted to cross, the lights of the locomotive shine on the negro houses to the right and on the west. On the night I was hurt I did not see the light. The track was very dark. As I started on the track I did not know a train was approaching. Nothing had happened, such as noise, lights, whistles, bells, or anything of that nature, to make me believe that a train was there, until the instant when I knew I was in danger. I was struck as I attempted to whirl off. . . I walked down four feet from the track. The train was going south in the same direction I was going. There is nothing wrong with my hearing that I know of. There is nothing wrong with my sight. . . I did not look to see if the train was coming. I had no occasion to look. I never looked down the track this way to see if the train was coming. I did not hear a train. It was around eight o'clock at night. It was very dark. . . The lights from the engine were deflected on the houses on the west. . . Four feet from the track, I think I was in a place of safety. If at that point I had looked back I could have seen the headlight of a train rounding the curve for a distance I would say of fifty or sixty feet. I don't think I could have seen it north of 19th Street."
The statement of the plaintiff that he went "blindly on the track in front of the train" which he knew would likely come along, is no more than a statement that he went onto the track without looking when he knew that a train might come along. He did not say that he knew that the train was at the time approaching. He said that he did not know that a train was at the time approaching. He also stated that he did not know that a train passed along there about that time.
There was evidence that the train was coasting and came down upon the plaintiff noiselessly and that he did not hear it. From the testimony of the plaintiff and the fireman of the train it appears that where the plaintiff attempted to cross the tracks was a place where people were accustomed to cross the tracks of the railroad from Railroad Avenue over to their homes on the other side of the tracks, and that on the occasion of the plaintiff's injury the fireman knew of this custom. There was evidence that the train was running from 25 to 35 miles an hour when it approached. The place where the plaintiff was struck by the train was within the city limits of Columbus and within a populous community. While the engineer in his testimony does not seem to concede that people crossed the track at this place, stating he had never seen them cross there, it is clearly inferable that from the physical condition of the houses being on both sides, and it being a fact that people were accustomed to cross, as appears from the testimony of the fireman, the engineer knew or had reason to know that people had been and were in the habit of crossing at this place. The fireman knew this.
The jury was authorized to find that the plaintiff crossed the track at a well-used crossing in a populous locality, where people were in the habit of crossing with the knowledge of the operators of the defendants' train, and that the defendants were guilty of negligence in the operation of the train at the time and place. Georgia Railroad c. Co. v. Cromer, 106 Ga. 296 ( 31 S.E. 759); Crawford v. Southern Ry. Co., 106 Ga. 870 ( 33 S.E. 826); and see my dissenting opinion in Lassiter v. A. W. P. R. Co., 61 Ga. App. 23 ( 5 S.E.2d 603). The jury was authorized to find that the negligence of the defendants was the proximate cause of the plaintiff's injuries, unless it appears as a matter of law from the evidence that the plaintiff's injuries were proximately caused by his own negligence and not by the negligence of the railroad company.
There is no law of stop, look, and listen prevailing in this State with regard to a place where people are accustomed to cross railroad tracks with the knowledge of the railroad company. Under the Georgia law, as I construe it, there is no duty as a matter of law resting upon a person crossing a railroad track, whether at a public crossing or at a private crossing, or at a crossing at which people are accustomed to cross with knowledge of the railroad company, to stop, look, and listen. This court held, in Vaughn v. Louisville Nashville R. Co., 53 Ga. App. 135 ( 185 S.E. 145), that "A person who, in walking across a railroad track along a pathway which is customarily used by the public at all hours of the day with knowledge of the railroad company, does not see and is not aware of an approaching train on the track because his back is turned towards the train and is oblivious of the movements of the train because the train is rolling and making very little noise and no warning is given by those operating the train of the train's approach, is not as a matter of law guilty of negligence which would bar a recovery in damages for injuries received by him by being hit by an approaching train," citing cases. In Southern Ry. Co. v. Slaton, 41 Ga. App. 759 (3) ( 154 S.E. 718), where the injury was at a private way maintained by the railroad company, it was held: "It is true that the Supreme Court has held that the court might properly charge the jury that `the precise thing which every person is bound to do before stepping upon a railroad track, is that which every prudent man would do under like circumstances,' and that `if prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means.' . . But this is an entirely different thing from the court undertaking to decide for itself, and as a matter of law, what such a person lawfully entering upon a public or private railroad crossing must or must not do in order to free himself of a guilt of a lack of ordinary care constituting the proximate cause of his injury. On the contrary, it has been many times ruled that such a question is one to be determined by the jury as a question of fact, rather than by the court as a matter of law. This long line of decisions, contrary to the rule in some jurisdictions, is to the effect that is can not be said as a matter of law, that the failure on the part of a person approaching and entering upon a railroad crossing, and unaware of the approach of a train, to stop, look, or listen, renders such person guilty of a lack of ordinary care such as would prevent recovery except in cases of wilful and wanton misconduct on the part of the defendant company," citing cases. See W. A. Railroad Co. v. Ferguson, 113 Ga. 708 (supra).
The jury was authorized to find that the operators of the train did not blow any whistle or ring any bell, that the train was, in the nighttime, approaching the crossing which was in a city and at a populous section, at a speed of 25 to 35 miles an hour, that with the knowledge of the agents of the defendant railroad company operating the train it was customary for people to cross the tracks at this point, that the engineer failed to keep a lookout, and that these acts constituted negligence. The jury was also authorized to find that the plaintiff was unaware of the approach of the train, which approached noiselessly, and that in going upon the track, under the circumstances, without looking, the plaintiff was not guilty of negligence barring a recovery.
I can not concur in the proposition that it appears as a matter of law that the plaintiff's negligence was the proximate cause of his injury. I think it was a jury question whether the plaintiff's negligence or that of the defendants was the proximate cause of his injuries, or whether the doctrine of comparative negligence would operate in reduction of the amount of recovery.