Georgia Southern & Florida Railway Co. v. Shobe , 142 Ga. 767 ( 1914 )

Evans, P. J.

Mrs. C. B. Shobe brought suit against the Georgia Southern and Florida Railway Company, to recover damages for alleged personal injuries. The petition alleged substantially the following: Fourteenth Avenue and Eighth Street, in the city of Cordele, cross each other at right angles. At their intersection they are crossed by the defendant’s railroad tracks. The intersection of these two streets is much traveled by the public of Cordele and the surrounding country. The defendant company maintains no flagman, gate, electric bell, or other means of warning to persons of approaching trains. On the day of the injury the plaintiff was traveling, with two companions, in a buggy along Eighth street, approaching the crossing, with the intention of crossing over the track at this' point. On a siding near the main line, and on the side from which she was approaching, there had been stationed several freight-cars, completely obstructing her view to the south. Just as she was about to enter upon the crossing, a train of the defendant company, running at a high rate of speed, and without notice or warning, dashed from behind the freight-cars on the siding, in front of plaintiff’s horse, causing the horse to become frightened and to run with the buggy for a distance of about a hundred feet, throwing her from the buggy and injuring her in a manner set out. The defendant company was charged with negligence in not tolling itg bell, and in not checking and continuing to check its train on the approach to the crossing; in so placing freight-cars on the siding as to obstruct the view of persons approaching the crossing, as well as that of the engineer in charge of the train; in failing to maintain at the public crossing, much frequented by the general public for travel and commerce, a flagman, gate, electric bell, or other signal to warn the plaintiff and the public, when approaching the crossing, of the approach of trains, and in allowing the train which injured her to approach the crossing at the high and dangerous rate of speed of twenty miles per hour. The jury returned a verdict for the plaintiff; and the defendant’s motion for a new trial was overruled.

1. There was evidence to authorize a finding that the plaintiff, while driving a horse. attached to a buggy .on a public street, and while approaching a railroad crossing with intent to cross the same, was injured by the horse becoming frightened on account of the train being run in violation of the crossing law, and its sudden 'and rapid rush from behind some freight-ears left by the company on a siding, which obstructed the view of the track in the direction whence the train was coming. The court charged, in appropriate connection, the code section which declares that a railroad company shall be liable for damages done to persons by the running of locomotives or cars, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. Civil Code (1910), § 2780. Exception is taken to the giving of this code section in charge to the jury, on the ground that it is inapplicable to a case where a person claims to be injured by a horse frightened by the running of the locomotives and ears of the railroad company. The soundness of this contention is dependent upon the question whether the running of the cars was the proximate cause of the plaintiff’s injury. In other words, if the plaintiff sustained injury caused by the running of the cars of the railroad company, the statute in terms applies. A railroad company which so negligently operates its locomotives and cars as to frighten the horse of a traveler upon a public highway puts in motion the agency which produces the injury, and will be liable for the results sustained by force of such agency, where no intervening factor interferes so as to relieve the company of the consequences of its negligent act. Under the evidence the jury was authorized to infer that the plaintiff’s injury was the result of a force put in motion by the running of the cars and locomotive of the defendant company; and the principle contained in the code section was applicable to the case, and was properly given in charge to the jury. Counsel for the plaintiff in error cite the case of Atlanta Railway & Power Co. v. Johnson, 120 Ga. 908 (48 S. E. 389), as opposed to this view. The case before the court, as stated in the fifth headnote, was as follows: “The plaintiff’s buggy was run into by a frightened horse drawing another buggy, and she was injured. A car of the defendant was passing at the time. She did not allege in her petition that the fright of the horse was originally caused by any act of the defendant, or that the car was running too fast or with any unusual or unlawful noise; but merely that, after seeing the frightened condition of the horse, the motorman failed to stop his car, thereby aggravating the fright of the horse and causing him to run away. Held: No presumption of negligence arose against the defendant upon proof of the injury, but it was incumbent upon the plaintiff to prove negligence as alleged. It was therefore error to give in charge to the jury the provisions of the Civil Code, § 2321” (Civil Code of 1910, § 2780). It will appear from the foregoing statement of the ruling of the court that the plaintiff in that case did not contend that she was injured by the running of the car. Nor did the petition disclose what she claimed to have been the original cause of the fright of the horse that ran into her buggy. Nor was it alleged that the ear was running at a high rate of speed, or that any unnecessary or unusual noise was made by its running. The only claim of neg-ligence was that the car was not run in such a way as to minimize an imminent danger, which was apparent to the motorman. Clearly the facts of that case are essentially different from the one at bar, and will not serve as a precedent for the point to which it is cited.

2. Complaint is made that the court inaccurately stated the provisions of the code section relative to the requirement that the engineer of a railroad company shall be required, when he shall arrive at a post located four hundred yards from the center of the road crossing, to toll the bell of the locomotive until it arrives at the public road, and simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing the track on the road. Civil Code (1910), § 2675. The criticism is not well taken. The instruction embodied the substance of the code section, and was almost in its exact verbiage.

3. It is further contended that the crossing law is intended to protect persons actually on the crossing, or persons that would be on the crossing upon the arrival of the train at the crossing; and as the plaintiff was not actually on the crossing, she is not entitled to the protection of the statute. This question has been settled by several adjudications of this court against the contention of the plaintiff in error. Bowen v. Gainesville &c. R. Co., 95 Ga. 688 (22 S. E. 695); A., K. & N. Ry. Co. v. Durham, 108 Ga. 547 (34 S. E. 332). The charge criticised is in accord with the ruling enunciated in the headnote of the case first cited, which we adopt as a headnote for this division of the opinion.

4. Complaint is made that the court refused certain written requests to charge the jury. In so far as the same were pertinent and applicable they were covered by the general charge. The evidence authorized the verdict, and no error of law was committed.

Judgment affirmed.

All the Justices concur, except Fish, C. J. ', absent.