Coleman v. Western & Atlantic Railroad , 1933 Ga. App. LEXIS 521 ( 1933 )

Sutton, J.

This was a suit for damages against the railroad company, in which the plaintiff made this ease-: He was walking along Simpson street, in the city of Atlanta, going in the direction of the tracks of the defendant which cross Simpson street, just west of the point where Marietta street and Simpson street intersect. This crossing is a public crossing and there 'are twelve or more tracks running parallel at this point. On -the south side of Simpson street and adjacent to one of the main lines of track there was a small cabin which was occupied by watchmen when on duty at the crossing. At the time the plaintiff approached the crossing there was no watchman on duty there, but usually there was a watchman at this crossing. As plaintiff approached the crossing there were box-cars on the track nearest Marietta street, on both sides of the crossing. As he got past the first track from Marietta street on which the box-cars were standing, an outbound train, headed north, was passing over the crossing. When this train passed, the plaintiff proceeded across the track along which it had just passed and onto the next track, and was struck by an incoming train which was being operated over the defendant’s tracks by the defendant’s servants. As this train approached the crossing no bell was rung, no whistle blown, or other signal given. The train was traveling at a speed of from 25 to 30 miles an hour. This crossing was a much-used one, within the- limits of the city. Because of the presence of the box-cars on each side 'of the crossing, a person entering upon the crossing from the Marietta street side could not see approaching trains until he got beyond the tracks on which the box-cars were standing. This condition rendered the crossing dangerous to persons who used it. When the plaintiff discovered the presence of the train it was so close to him and traveling so fast that it was impossible for him to get out of its way. Plaintiff sets, up that the defendant was negligent, in that, notwithstanding the fact that the box-cars were standing on the tracks adjacent to the track on which the trains were being run, and notwithstanding the fact that the crossing was in a thickly populated section of the city and much used, the train which struck him approached the crossing at a high and reckless rate of speed, in that the engineer of the train failed to sound any warning of the approach of the train, and in that it failed to have on duty at the time a watchman to warn persons of the approach of trains. Plaintiff set up that he was in the exercise of ordinary care, and that the .proximate cause of his injuries was the negligence of the defendant. The defendant demurred to the .petition. The court sustained the demurrer, and the plaintiff excepted.

The case is controlled by the rulings stated in the headnotes.

Judgment affirmed.

Jenkins, P. J., concurs. Stephens, J., dissents.