Atlanta, Birmingham & Coast Railroad v. Hutcheson , 73 Ga. App. 43 ( 1945 )

A railroad company is liable to one driving a mule along the public highway parallel with the tracks, from unnecessarily discharging blasts of steam and unnecessarily blowing a steam whistle of the locomotive, which tended to and did frighten such animal, and was the proximate cause of such fright and damage. It is a jury question whether the noises thus made were unusual and unnecessary and did, without fault on the part of the driver of the animal or the nature of the animal, cause the injury.

DECIDED OCTOBER 12, 1945. Mrs. M. C. Hutcheson, sued the Atlanta, Birmingham and Coast Railroad Company for damages resulting from her having been thrown from a one-horse wagon drawn by a mule. The defendant filed a demurrer to the petition, which was overruled. To this judgment the defendant assigns error. It is conceded by both parties that the gist of the petition is contained in paragraph 5, which reads as follows: "On October 7, 1944, at about 10:30 o'clock a. m., petitioner, together with Mrs. Edwin Vickers and Mrs. Vickers' baby, were riding in a one-horse wagon on Birmingham Street in the City of Nicholls, Georgia, headed west, parallel with and about 50 feet from the roadbed of defendant's railroad. Said wagon was being drawn by a 20-year-old mule which is, and was on October 7, 1944, well broken, gentle, roadworthy, and not subject to fright from usual noises encountered in ordinary road travel. As the mule, which was hitched to the wagon on which petitioner, Mrs. Edwin Vickers, and Mrs. Vickers' baby were riding, approached the intersection of the said Birmingham Street and the street running north and south next west of the Atlanta, Birmingham and Coast Railroad depot in the City of Nicholls, one of defendant's locomotives was stopped on said railroad, headed west, a distance of approximately 40 feet east of said street which runs north and south next west of said Atlanta, Birmingham and Coast depot, and as petitioner passed the locomotive, in clear and unobstructed view of the engineer and fireman who were operating said locomotive as agents, servants, and employees of defendant, a loud blast of steam was discharged from the cylinder valve on the left side of said locomotive towards the said mule. The said blast of steam made an unusual noise and was unnecessary for the time and place. The mule became frightened on account of the unusual noise of the discharged steam and attempted to run away, and the engineer and fireman saw or by the exercise of ordinary care could have seen that petitioner was in a perilous situation at that time, but petitioner managed to get said mule under control without injury to any of the occupants of said wagon, petitioner being unable to get off said wagon on account of her efforts to quiet said mule; and to have attempted to get off the wagon would have been more dangerous at the time and under the circumstances than it was to remain on said wagon. Immediately thereafter, and before petitioner had an opportunity to get off said wagon safely, the said locomotive began slowly moving west, while the mule and wagon and the occupants of said wagon were still in clear and unobstructed view of said engineer and fireman who were operating said locomotive, and a second sudden, more unusual and louder blast of steam was discharged from the said cylinder valve on the left side of said locomotive towards said mule, and the locomotive's steam whistle was blown several times in loud and unusual blasts and in rapid succession; said blast of steam and whistle-blowing making an unusual noise and being unnecessary and contrary to the laws of said State for the place and on the occasion, at which the mule became frightened again, suddenly turned around away from said locomotive, throwing petitioner from said wagon and breaking petitioner's left leg about three inches above the ankle. While petitioner lay on the ground in Birmingham Street, approximately 75 feet from said locomotive, frightened and writhing in agonizing pain, and unable to remove herself from the hazards of traffic on said street on account of said injury, and while said mule was running away with Mrs. Edwin Vickers and her baby in said wagon, all in clear and unobstructed view of the said engineer and fireman who were operating said locomotive, said agents, servants, and employees of defendant drove said locomotive away from the scene without any aid or assistance being offered or performed by any of defendant's employees."

The petition alleged that the plaintiff was free from negligence. The specifications of negligence in substance were: (a) that the train was operated in such a negligent manner as to disregard the safety of the plaintiff; (b) that the agents of the defendant, after seeing the frightened condition of the mule caused by the first unusual and unnecessary discharge of steam, and after seeing the perilous situation of the plaintiff caused by the first blast of steam, and before the plaintiff could safely get off the wagon — caused a second, greater, and more unusual blast of steam to be discharged from the locomotive toward said mule, and blew the steam whistle of the locomotive in several loud blasts in rapid succession, and the discharge of steam and the whistle-blowing made an unusual and unnecessary noise, which renewed and added to the fright of the mule and caused the animal to run away from the said locomotive and injure the plaintiff; (c) that the agents of the defendant in the operation of the locomotive neglected to exercise any precaution to avoid the occurrence complained to by the plaintiff, and the results of the acts committed by the defendant's agents could and should have been seen and anticipated by any reasonably prudent person in the exercise of ordinary care under the same or similar circumstances; (d) that after the negligent and unlawful discharge of steam and the blowing of the steam whistle, which caused unusual and unnecessary noises calculated in their effects to frighten the mule, and while the plaintiff lay on the ground in the street writhing in pain and frightened, unable to extricate herself from the hazards of the street traffic, and while the mule was running away in clear and unobstructed view of the agents — they negligently and without regard to the plaintiff's safety operated the locomotive away from the scene without aiding and assisting her in any manner; (e) that the said agents saw or by the exercise of ordinary care could have seen the mule, the wagon, and the occupants of the wagon and the frightened condition of the animal at the time of the first blast of steam and in ample time to have avoided a second greater blast of steam and to have avoided blowing the steam whistle, which caused unusual and frightening noises; (f) that the agents blew the steam whistle negligently, unnecessarily, and in violation of the State law regarding the blowing of steam whistles of locomotives in cities, towns, or villages.

The defendant demurred generally, on the grounds: (1) the petition set forth no cause of action; (2) it contains no allegation which if true would be sufficient to authorize a recovery; (3) in no event will the plaintiff be entitled to recover any amount under her allegations; (4) the petition contains no specifications of negligence which would authorize the recovery of any amount; (5) the petition is wholly insufficient as a matter of law to set out a cause of action. There was a special demurrer to paragraph 5, on the ground, (6) that all reference to the unusual and unnecessary discharge of steam and blowing the whistle, and reference to the perilous situation of the plaintiff, and that the agents saw or could, by the exercise of ordinary care, have seen the perilous condition of the plaintiff, were mere conclusions of the pleader, without any facts upon which to base them. The other special grounds of demurrer with reference to other paragraphs of the petition are based upon the contention that the conclusions of the plaintiff are without sufficient allegations of facts to sustain them. It is our opinion that the special grounds are without merit. If the allegations of the petition are sufficient to withstand a general demurrer, the judgment should be affirmed. We will cite authority as to the general grounds of the demurrer, but deem it unnecessary and of no benefit to cite any as to the special grounds.

From our viewpoint it is clear that the petition sets out a cause of action. This court held in Southern Railway Co. v.Flynt, 2 Ga. App. 162 (5, 6) (58 S.E. 374): "The duty to give warning signals, and to keep a lookout, is limited to persons on the track or that apparently may get on the track. No such duty is required as to travelers on adjacent and parallel highways. . . Where those in charge of the running train see apparent danger to persons on the highway, it then becomes their duty to use reasonable and practicable care to prevent injury." In Dabbs v. Rome Railway Light Co., 8 Ga. App. 350 (69 S.E. 38), it was said: "Where a motorman in charge of an electric car sees apparent or probable danger of an accident to a person on the highway adjacent to the track, or by the exercise of reasonable care could see that danger is imminent, caused by the approach of the car, it is his duty to use reasonable care to avoid the accident. What would be reasonable care would be a question for the jury, under the facts of the particular case. . . A motorman in charge of an electric car who observes, or in the exercise of reasonable care could observe, a vehicle containing several occupants near the track, and that the animals pulling the vehicle are frightened at the approach of the car, and are acting in such manner as to lead a person with ordinary prudence to apprehend danger of a collision between the car and the vehicle, is bound to bring the car under such control that it can be stopped, if necessary, to prevent a collision or injury to the occupants of the vehicle. . . If the approach of the car and the consequent fright of the horse attached to a vehicle in close proximity to the track cause one in the vehicle to jump therefrom in order to escape apparent or imminent danger, it would be for the jury to determine whether the emergency did in fact exist, or was reasonably thought by the person so jumping to exist, and whether the act of jumping, under all the circumstances, was contributory negligence."

In Georgia Railway Electric Co. v. Joiner, 120 Ga. 905 (48 S.E. 336), the Supreme Court said: "It is the duty of a street-railway company, in operating its cars along a public road, not to interfere with the rights of individuals using such road by other modes of travel, by making unusual and unnecessary noises, such as are likely to frighten animals along such road; and for damages resulting from a breach of such duty the company is liable."

In Carger v. Macon Railway Light Co., 126 Ga. 626 (55 S.E. 914), the Supreme Court said: "When the motorman saw that the mules being driven by the plaintiff's intestate in the street, where he had a right to be, were being frightened by the car, was it not his duty to stop, in order to give the intestate some opportunity of avoiding a catastrophe? Under those conditions was it not negligence to continue his approach, sounding the gong? These were questions for the jury. . . The evidence was not such as would have authorized the court to hold that the viciousness of the animals was the proximate cause of the injury. That question was one also for the jury. It was erroneous to grant a nonsuit."

In Southern Railway Co. v. Hutcheson, 136 Ga. 591 (2-4) (71 S.E. 802), that court said: "Where the question under consideration is one of opinion, a non-expert witness may state the facts and circumstances and his opinion predicated thereon. . . In a suit against a railroad company for a personal injury caused by a horse, alleged to have been frightened by unusual and unnecessary noises made by the defendant's locomotive, it is competent to show that the horse was roadworthy and was not subject to fright by the ordinary and usual noises incident to the operation of locomotives and cars. . . The charges on the subject of a railroad company's liability for an injury to a traveler on a public thoroughfare alongside the railroad, alleged to have been caused by the traveler's horse becoming frightened by the unusual and unnecessary noises made by the locomotive of the company in approaching the station, were in substantial accord with the rule of liability as defined in GeorgiaRailroad v. Carr, 73 Ga. 557."

In Shiver v. Tift, 143 Ga. 791 (85 S.E. 1031, L.R.A. 1918A, 622), the Supreme Court said: "A railroad company engaged as a common carrier of freight and goods for hire under the laws of this State, whether incorporated or unincorporated, has the right, in the operation of trains, to make all the noises usual and necessary to the movement and working of locomotives, and will not be liable for injuries occasioned by horses driven on the highway taking fright at such noises, if it exercise the right in a lawful and reasonable manner. In crossing a much frequented street in a city, it is the duty of the company to so operate its locomotive as not unnecessarily to interefere with the rights of individuals traveling on the street by other means of travel, or to endanger such travel by unnecessary noises, frightening horses. For a breach of this duty, resulting in injury, an action will lie. The petition as amended stated a cause of action, and the amendment did not add a new cause of action. . . Testimony of a witness that a horse was nervous and high-strung is allowable, as being within the rule which admits opinions from necessity." See also Brunswick Birmingham R.Co. v. Hoodenpyle, 129 Ga. 174 (58 S.E. 705); GeorgiaRailroad v. Carr, 73 Ga. 557.

We think it may be said, under the allegations of the petition, that the defendant owed the plaintiff no statutory duty to refrain from discharging the steam or blowing the whistle under the situation as depicted in the petition. Nevertheless, the defendant did owe the plaintiff the duty, under the general rule of negligence, to operate its locomotives in the usual and ordinary manner with no more noises than were necessary and incident to the operation of its locomotives. The defendant did owe the plaintiff the duty not to invade her rights on the highway by a frightening and unnecessary discharge of steam from its locomotives and a loud and unnecessary blowing of the steam whistle several times in rapid succession. These allegations were sufficient to allege a cause of action, and the court did not err in overruling the demurrers, both general and special.

Judgment affirmed. Broyles, C. J., concurs.