Louisville & Nashville Railroad v. Athon , 54 Ga. App. 787 ( 1936 )

Stephens, J.,

dissenting. In a petition to recover damages for personal injuries against a railroad company, where it is alleged that while the defendant’s train was being moved and switched along its track which was located, under authority of law, longitudinally in the center of a city street, the' driver of an automobile in which the plaintiff was riding and which was approaching along an intersecting street, stopped the automobile and waited at the crossing, while the defendant’s train was being moved and switched, “until it could be determined what the employees and servants” of the railroad company intended doing in the operation of the train, so that the driver of the automobile could cross the street in which the track was located, and that after the train had moved and cleared the crossing, and had stopped, the trainman “notified and signaled” the driver of the automobile “to proceed on her way across said street,” and that the driver “in reliance” on the signal of the trainman proceeded to cross the street, and when the automobile arrived at a place in the street just beyond the railroad-track the automobile was run into by an automobile, truck approaching along the street in which the defendant’s track was located, that the driver’s view of the oncoming truck had been obscured by the train in the street, and that as a result thereof the plaintiff, a passenger in the automobile, received severe personal injuries; but where it is not alleged and does not appear otherwise from the petition that there was' any duty resting on the railroad company to assure travelers over the crossing of the safety of the crossing, except in so far as it might be affected by the operation of the train, and where it does not appear that the trainman who gave the alleged signal to the driver of the automobile was a watchman at the crossing with a duty to assure travelers of the safety of the crossing as against all traffic on the other street, it does not appear from the petition, when construed most strongly against the plaintiff, as must be done, that the trainman in signaling the driver of the automobile as alleged was assuring the driver that the crossing was safe as against all vehicular traffic coming on the other street; but the petition must be construed as if it alleged that the trainman gave the driver assurance that it was safe for the driver to cross in so far only as the movement of the particular train was concerned. Therefore it does not appear from the petition that the injuries of the plaintiff were the proximate result of any negligence of the railroad company in so placing its train as to obscure from the vision of the driver of the automobile the oncoming truck which injured the plaintiff, and in signaling the driver to cross the street with assurances of safety against traffic on the street in which the railroad-track was located. The petition failed to set out a cause of action against the railroad company. I am of the opinion that the judgment overruling the demurrer to the petition should be reversed. This judgment has been affirmed, and the ruling on the demurrer is the law of the case. The judgment overruling the motion for new trial is before the court for consideration. I concur in the judgment affirming the overruling of the motion for new trial, but dissent from the judgment affirming the overruling of the demurrer to the petition.'