Reed v. Southern Railway Co. , 37 Ga. App. 550 ( 1927 )

Jenkins, P. J.

1. “When those in charge of a railway-train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured, the only defenses open to the company are, that the injury was done by the consent of the person injured; or that by the observance of ordinary care he could have avoided the injury; or, in mitigation of damages, that his negligence contributed to it.” Bryson v. Southern Ry. Co., 3 Ga. App. 407, 408 (59 S. E. 1124); Harden v. Ga. R. Co., 3 Ga. App. 344 (59 S. E. 1122).

2. Where a person injured by the running of a railroad-train could, “by the.exercise of ordinary care for his own safety, have avoided the consequences to himself of the defendant’s negligence after it came into existence and was known to him, or could have been discovered by the exercise of ordinary care, an action for damages against the railroad company on account of negligence will not lie.” Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (5) (89 S. E. 841); Civil Code (1910), §§ 2781, 4426.

3. “In this State it is not per se negligent for one not aware of the approach of the train to attempt to cross the track without stopping, looking, or listening.” Bryson v. Southern Ry. Co., supra; Tennessee &c. Ry. Co. v. Neely, 27 Ga. App. 491 (2), 494 (108 S. E. 629); Davis v. Whitcomb, 30 Ga. App. 497 (5), 498 (118 S. E. 488). Accordingly, such an attempt to cross the track by one not aware of the approach of a train can not, as a matter of law, be said to constitute such contributory negligence as will bar a recovery. If, however, such a person, before attempting to cross the track, actually did stop, look, and listen, and if upon doing so he must necessarily have discovered the approaching train, it would be immaterial whether the railroad company was negligent in that those in charge of the train did not comply with the statutory requirement to give warning of its rapid approach, by blowing the whistle, since such warning could have done no more than apprise him of something he must necessarily have already known. Murphy v. Ga. Ry. &c. Co., 146 Ga. 297 (4), 299 (91 S. E. 108).

4. It can not be said, with any degree of moral or reasonable certainty, that if the plaintiff in the instant ease had stopped, looked, and listened, as he swore he did, before entering ■ upon the crossing, he must necessarily have seen or heard the approaching train. The evidence with reference to the growth of cane and other vegetation along the right of ■way is somewhat vague. It is not clear how close to the cane the plaintiff was at the time he claims to have stopped to- look and listen for the train, but, from the evidence as adduced, if he was then close enough to such obstruction, it could have prevented his seeing the headlight of the rapidly approaching train; and if the train was then coasting down grade, as the evidence in the record might seem to indicate, such might constitute a special reason why he might not have been able to hear its approach. Under the general rule that questions of negligence, including contributory negligence, questions as to what negligence constitutes the proximate cause of the injury, and questions as to whether the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence after. it had’ or should have become known, are such as lie peculiarly within the province of the jury to determine (L. & N. R. Co. v. Stafford, 146 Ca. 206 (91 S. E. 29); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413 (91 S. E. 517); Central of Ga. Ry. Co. v. Barnett, 35 Ga. App. 528, 530 (134 S. E. 126)), this court will not hold, as a matter of law, that the injury to the plaintiff was proximately caused by reason of his lack of ordinary care in entering upon the track as he did.

Decided December 17, 1927.

5. The evidence offered as to the speed of the train a distance of one mile or one mile and a half before reaching the crossing at which the accident occurred was not irrelevant, since the intervening distance might have been traversed in a very short time, not more than two minutes, at the speed at which it was stated the witness would testify the train was traveling. The exclusion of this testimony, therefore, was error. Savannah &c. Ry. Co. v. Flammagan, 82 Ga. 579 (2), 588 (9 S. E. 471, 14 Am. St. R. 183).

6. Under the foregoing rulings, the court erred in granting a nonsuit.

Judgment reversed.

Stephens and Bell, JJ., concur. William B. & Gordon Mann, for plaintiff. Maddox, Maddox & Mitchell, W. M. Sapp, for defendant.