Southern Railway Company v. Watson , 74 Ga. App. 317 ( 1946 )

There was sufficient evidence to sustain the verdict.

DECIDED SEPTEMBER 10, 1946. REHEARING DENIED OCTOBER 3, 1946. H. W. Watson, whom we shall call the plaintiff, sued the Southern Railway Company, whom we shall call the defendant, for personal injuries which he alleged he received on account of the negligence of the defendant. The material parts of the plaintiff's petition are set forth here: "Paragraph 3. That the defendant did on, to wit, 7th day of April, 1945, about 12:14 o'clock a. m. railroad fast time run into and injure petitioner as petitioner was driving United States mail truck from south side of defendant's track in a northerly direction across the Bradford Street crossing of defendant's railroad tracks. Petitioner in the due course of his duties was bringing the United States mail from north bound train No. 136 of defendant to the post office at Gainesville, Georgia, when defendant's north bound freight train No. 58, known as the Rocket, without ringing bell, blowing whistle or giving warning of its approach, and running at a rapid and excessive rate of speed, to wit, 60 miles an hour, ran into the truck petitioner was driving and knocked petitioner and part of truck off the track and against water plug and greatly injured him as hereinafter set out. Defendant's train knocked said truck off the track and carried part of it 1560 yards before said train could be stopped. Said Bradford Street crossing is a public street crossing of defendant's railroad tracks in the City of Gainesville and is a crossing at grade. Said train did not slacken its speed for said crossing, nor signal its approach to said crossing and the engineer and trainmen did not keep a lookout ahead of its engine for said crossing to avoid injury to petitioner while crossing said Bradford Street.

"Paragraph 4. Trains on defendant's track from Atlanta to Washington in the station yard limits of quarter mile on each side of defendant's depot in Gainesville cross in the order named: Gainesville Midland Railroad track, Gainesville Mill public highway, Candler Road Street, Bradford Street, Chestnut Street, and Athens Street. All of said crossings and tracks between are located in the City of Gainesville except said Midland Railroad and Gainesville Mill highway crossing and track for about 100 feet North thereof. Said Midland Railroad and Gainesville Mill highway crossings are approximately 440 yards South of said Bradford Street crossing. Said Candler Road Street is approximately 100 yards South of Bradford Street crossing. Said Chestnut and Athens Streets crossings are approximately 100 yards and 400 yards respectively North of said Bradford Street crossing. Between said Candler Road Street and Bradford Street are located defendant's freight and passenger depots and stations for Gainesville. All of said crossings are public crossings at grade and are all much used by the public. Said Gainesville Mill highway crossing is just outside city limits of Gainesville. All said other crossings except Midland Railroad are public street crossings at grade in the City of Gainesville. Defendant's train from said Midland Railroad to Athens Street was approaching or crossing public streets and highway at grade crossings in corporate limits of Gainesville and defendant well knew the danger to people and property on said Bradford Street crossing.

"Paragraph 5. Said injury to petitioner was caused by defendant's negligence, and said negligence consisted in part in the following particulars:

"(a). In operating said train in the City of Gainesville and while approaching and crossing said Bradford Street crossing at the reckless and excessive speed of, to wit, 60 miles per hour.

"(b). In not constantly tolling the bell of said train after arriving at the city limits of Gainesville and up to the time said train reached and crossed said Bradford Street in said city to warn petitioner of the approach of said train and to avoid injuring petitioner.

"(c). In defendant's and defendant's engineer's failure to keep and maintain a constant and vigilant look-out along the track ahead of its engine while said train was moving in the corporate limits of Gainesville and while approaching and crossing said Bradford Street in said city.

"(d). In defendant's running into and against petitioner and said truck and injuring petitioner while he was driving said truck across said Bradford Street.

"(e). In defendant's not slowing and checking the speed of said train on reaching and while in the city limits and while approaching and crossing said Bradford Street so as to be able to stop said train before and at said Bradford Street if necessary to avoid injuring petitioner on said Bradford Street or within 50 feet thereof.

"(f). In defendant's operating said train over said Midland Railroad track without slowing, or checking its speed, and over said Gainesville Mill highway without two long and two short blasts of the whistle, and over said Candler Road and Bradford Streets without tolling the bell of said train and through the station limits of defendant at Gainesville at an unreasonable and excessive rate of speed, to wit, 60 miles an hour, contrary to law and contrary to defendant's own rule prohibiting a speed through its station limits of over fifteen miles an hour.

"(g). In defendant's failing to exercise due and ordinary care in controlling the speed and movements of said train within the corporate limits of said Gainesville and while approaching and crossing said Bradford Street so as to avoid injury to petitioner.

"(h). In defendant's not giving petitioner any notice or warning of defendant's negligence before or until said train crashed into and injured petitioner on said Bradford Street crossing.

"(i). In defendant's operating said train within the corporate limits of Gainesville, Georgia, and upon approaching and crossing said Bradford Street crossing at a rate of speed greater than twenty miles per hour contrary to the city ordinance of 1925 of Gainesville, Georgia, copy of which is hereto attached marked Exhibit A."

The defendant, in answer to the petition, denied the material allegations above set forth and affirmatively answered: "By way of further answer and plea in its behalf this defendant avers that any injury suffered by the plaintiff at the time and place referred to in plaintiff's petition was due to his own gross negligence in failing to exercise any degree of care for his own preservation and protection and because of his driving a motor vehicle in front of an on-coming train without looking or listening and at a time when and a place where he could, by the exercise of the slightest degree of care, have avoided any injury to himself."

The evidence material to a discussion of the case is substantially as follows: The plaintiff was known as the night-mail messenger and it was his duty to meet night trains and deliver mail from the post office and receive mail from the train for transportation back to the post office. The defendant company operated both freight and passenger trains over a double track system at the depot. The track just east of the depot, known as the southbound main line, is paralleled by another track known as the northbound main line. A short distance north of the depot there is a crossing over both of said main lines at Bradford Street, which is within the city limits of Gainesville. On the night of April 6, 1945, the plaintiff had gone on his accustomed trip from the post office with mail to meet the northbound passenger train No. 136. After crossing both lines of track at Bradford Street crossing he had backed the truck down on a landing which was situated between the north-bound main line and a side track to a point about even with the ticket office. This left two lines of railroad track between the truck and the ticket office. The plaintiff estimated the landing where he parked to be about ten feet wide and that he was situated about 125 feet from the crossing. After train No. 136 arrived 30 to 45 minutes late and the mail was exchanged, some being placed on the ground, he moved the truck forward about 25 feet nearer to the crossing to permit the train to leave, later finishing the job of loading his mail. This left the truck headed toward the Bradford Street crossing approximately 90 feet therefrom. The plaintiff then proceeded to the ticket office and Mr. Proctor, an employee of the railway company, coming off duty at midnight wanted to ride to town on the truck as he frequently did when the train was late. As the plaintiff and Proctor were going from the ticket office to the truck they both saw a light in a southerly direction down the railroad which the plaintiff said was coming around the curve at the airport. The plaintiff observed the light after he reached the landing between the north and southbound main lines on his way to the truck. He continued to watch the light as Proctor went around the truck to get in. As Proctor crossed the main line nearest to the truck, which was the northbound main line, he said: "I think I see another one sticking up." To which statement the plaintiff replied: "Yes." The plaintiff said he understood that Proctor meant another train was "sticking its head up." This transpired as they were approaching the truck and getting into it preparatory to leaving. The truck was started and proceeded to the crossing at the rate of about 3 or 4 miles per hour and the plaintiff turned it to his left across the northbound main line, when it was hit by the train. This required 40 to 45 seconds, based on comparison with timing it, which was done later. The plaintiff's evidence was that he could see nowhere except just to the side of the truck and that although he got in the truck with the light he had seen to his back, that he only looked around to the side of the truck right out over the rails and as far as he could; that he could see only as far back as halfway the length of the truck and to see further down the track he would have had to get out and that he didn't look back down the track before he got in the truck other than to see the light. There was a road or street known as Railroad Avenue situated near the railroad track where the plaintiff said he saw the light, but Railroad Avenue was not visible at night from the Bradford Street crossing. The collision occurred at 14 minutes past 12, midnight. The plaintiff estimated the distance from the crossing to the airport where he says he saw the light to be about a mile. He decided that the light he saw was a car or automobile instead of a train, according to his testimony on the trial. He had been meeting train No. 136 practically every night since July 1, 1944, and he knew there were lots of trains running and almost every time he was there, one, two or three trains ran before or after No. 136, if he stayed long enough.

A day or two after the collision the plaintiff gave the claim agent of the defendant Southern Railway Company a written statement as to how the collision occurred, marking the words "read and O.K.'d" on it in his own handwriting. On the trial he repudiated that statement in part, saying he could not remember putting in it the words that he would not have tried to get across the crossing if he had not thought he had time to do so, and stated that he could not recall that he had said anything to the claim agent about that statement being incorrect, and that he tried to make it just like the statement he gave to the post office inspector. He said he told the truth in every particular of the statement except that one clause, and further testified that he thought nothing else but that he did have time to get across, because he didn't think a train was coming. We add specific quotations from the plaintiff's testimony in his own behalf: "I heard no whistle or bell and didn't see any lights — no signal of any kind over there on the track . . the train ``never did blow' and when I didn't hear any whistle or bell ringing I thought it must have been a car and proceeded and went on across . . but after not hearing it and could not hear any sound at all, he never did blow or ring the bell, persuaded me to believe it was a car on Railroad Avenue instead of a train because I could not hear it after I got in the truck. I have been fooled by the lights that way before lots of times. . . We crossed the track. I looked to the southbound and didn't see a light or nothing. When I got to the landing between the north and southbound tracks and walking uneven with the truck and crossing northbound track to the truck, I looked and saw a light come around a curve at the airport. I listened to see if it was a train or car and I never heard a sound — no whistle or nothing. I got in the truck and drove to the crossing — left the cab door on the left, next to the track, open to see if it might be a train, and I reached the crossing and listened and looked around to see if I could see any reflection of a light and I could not see anything. I looked as far towards Atlanta as I could. He was coming to my back, and of course I could not see down, nothing only look out the side of me and as far back down the track as I could for a light. I said, ``Well, there's a car down on Railroad Avenue' — the light I saw. He never blowed or give no bell. I meant an automobile. I shut the door and turned across the track and when I did he crashed into me. There is a highway running parallel with the railroad along down there about the airport a mile or more away, and we call it Railroad Avenue. It is Railroad Avenue leading out from the station down there and it is not a state highway, I don't think, you know it leads on out into the state highway going to Atlanta and there we just always called it Railroad Avenue as far as the city limits is concerned. The highway and the railroad track are pretty close together. From the Bradford Street crossing where the accident happened I would say that is about a mile or a little better away. There wasn't anything like that said at all about us thinking we had time to get to my truck and get on the way. As to what was said, was not anything said by me or him either. He went around the truck, I was watching. . . After not hearing it and could not hear any sound at all, he never did blow or ring the bell, persuaded me to believe it was a car on Railroad Avenue instead of a train, because I could not hear it after I got in the truck. I have been fooled by the lights that way before lots of times. I have been standing in the yard there between the tracks and see the car lights down there and think it was train 136. I would be waiting for it and I could cross over and take the pouches off the back of the truck and put them on the baggage float to catch the mail out of the car and put them in. After we unloaded the car on the truck and went over there and got in position and laid the pouches on the baggage float and got ready to work them and look around, he was gone. It would be a car and not a train. Yes, I would be convinced it was not a train you saw down there a mile or so away, but a car. I have seen an automobile with one head or front light. You can't tell about them down there. As many of them as I saw, I would think there was something to strike the view of the headlights. That fools you so much. There would be a car or automobile down there with one light coming up the road. . . Yes, after Mr. Proctor and I got in the truck after seeing the light down there a mile or more away we listened for a train or some indication of a train. I left the cab door open as I drove up to the crossing and I was listening all the time. I never heard any sound at all to indicate a train whatever. And I shut the cab door just as I got about to the crossing and looked out at the side and could not detect a light and at the rails too and looked as far down as I could and I said, "That's a car down on Railroad Avenue.' Some call it the highway and I shut the door and turned across the track. I had no knowledge of any train being there until it hit me. I never thought there was a train nowhere abouts. . . I surely would not have crossed unless I thought I had time. I didn't know it was a train until it hit me. That was what I tried to make at the post office in the inspector's statement. I didn't think it was a train. I just said yes to him when I got in but I had a train on my mind and I wanted to know before I got on the truck out there where he was at, if it was a train, but after he didn't blow and I could hear no sound at all, why I was persuaded it was a car down on Railroad Avenue instead of a train, and I made an effort to cross, thinking there was not a train. . . I listened for a sound, and I thought that was what the whistle was for and ringing the bell, and after I didn't hear the whistle or bell, I proceeded across because I thought it was a car down on Railroad Avenue."

It was stipulated that a valid city ordinance was in force in the City of Gainesville, limiting the speed of trains to 25 miles per hour. The evidence on the part of the plaintiff authorized the jury to conclude that the freight train which struck the mail truck was being operated, at that time, at a speed in excess of that prescribed by the city ordinance, and as much as 60 miles per hour. The testimony for the defendant was in conflict as to the speed of the train. The evidence on behalf of the defendant was to the effect that the speed of the train was within the limits of the city ordinance and of the State statutes. The evidence of the plaintiff was to the effect that the defendant was negligent in not tolling the bell or giving any kind of warning to the plaintiff of the approach of the train to the crossing, and that the agents of the defendant in the operation of the train were negligent in failing to check the speed of the train and keep a proper lookout on the approach of the train to a crossing. The evidence of the defendant on this issue was in conflict with that of the plaintiff.

A verdict of $1900 was returned in favor of the plaintiff. He sued for $3000. The alleged personal injuries were specifically set forth. The plaintiff did not own the truck. The damage to the truck is not involved in this case. The defendant filed a motion for a new trial on the general grounds only. This motion was overruled, and on this judgment he assigns error. The only question before us for decision is: Does the evidence demand a verdict for the defendant? Learned counsel contend that the verdict and judgment are contrary to law and without evidence to support them, and that the affirmative defenses in the defendant's plea and answer were abundantly sustained by the testimony of the plaintiff. To sustain this view, our attention is called to Code (Ann. Supp.) § 105-603, which reads: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may, in some way, have contributed to the injury sustained." Our attention is also called to § 37-116, which reads: "Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found such inquiry might have led. Ignorance of a fact due to negligence, shall be equivalent to knowledge in fixing the rights of the parties."

Our attention is also called to a number of decisions which we have carefully considered. In Hunt v. Dunn, 74 Ga. 120,121, the Supreme Court said: "Whatever is notice enough to excite attention and put the party on his guard and call for inquiry, is also notice of everything to which it is afterwards found that such inquiry might have led, although all was unknown for want of investigation; that is, where a person has sufficient information to lead him to a fact, he shall be deemed cognizant of it."

In Schmidt v. Block, 76 Ga. 823, the Supreme Court said: "(a) Where knowledge is essential to charge the master, negligent ignorance is equivalent to knowledge."

This court in Coleman v. W. A. R. Co., 48 Ga. App. 343 (172 S.E. 577), said: "A railroad track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon the track, even at a public crossing in the city. An ordinarily prudent person in the possession of all his faculties would not attempt to cross a railroad track at any place without using at least his sense of sight, if not that of hearing, to determine whether at the time and place he was about to cross the same there were present any of those dangers which a person of ordinary intelligence would reasonably apprehend." See also Gainesville Railway Power Co. v. Ham, 17 Ga. App. 500 (87 S.E. 715), and Thomas v. Central of Ga. Ry. Co.,121 Ga. 38 (48 S.E. 683). In Harris v. Southern Ry. Co.,129 Ga. 388 (2) (58 S.E. 873), it is said: "Although the agents of a railroad company may be negligent in running its engine and cars at a high rate of speed over a public road crossing and in approaching a station where the train is to stop, and in not keeping a lookout, yet, if a person, with knowledge of the impending danger, steps on the track and seeks to cross immediately in front of the engine, and is injured, he can not recover." See also Southern Ry. Co. v. Hogan, 131 Ga. 157 (62 S.E. 64). Also, our attention is called to the remarks of Justice Lumpkin in the case of Americus, Preston Lumpkin R.Co. v. Luckie, 87 Ga. 6 (13 S.E. 105), as follows: "It seems to be the clear meaning of our law that the plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows he could by ordinary care, after the negligence of the defendant began, or was existing, have avoided the consequences to himself of that negligence . . the law of contributory negligence is applicable only where both parties are at fault, and when, also, the plaintiff could not by ordinary care have avoided the injury which defendant's negligence produced." Likewise, our attention is called to the case of Kirk v. Savannah Electric Power Co., 50 Ga. App. 468 (1, 3) (178 S.E. 470), which reads as follows: "1. A street railway company is not liable in damages to the plaintiff because of a collision between a street car and the plaintiff's automobile, at a crossing, that was brought about solely by the plaintiff's mistaken judgment that he had ample time to drive his automobile across the defendant's railway tracks ahead of the oncoming street car. . . 3. Where the plaintiff's injury is the result solely of his erroneous judgment, the doctrine of comparative negligence is not applicable."

It is contended that on account of these precedents and principles the evidence in the instant case demands a reversal and demands a verdict in favor of the defendant. In cases of this character, it is often quite difficult to determine the line of demarkation as to whose negligence is the proximate cause of an injury, and where, as here, the evidence authorizes the application of the rule of comparative negligence, the question becomes more difficult. Of course it is conceded that if the plaintiff in the instant case deliberately drove upon the track of the defendant, in front of an oncoming train, with full knowledge that the train was approaching, or that if he, by the exercise of ordinary care, could have discovered its approach, then he would not be entitled to recover, even though the defendant was negligent. But upon a careful comparison of the allegations of fact and the evidence in the instant case with those of the cases cited, we conclude that the principles invoked are not controlling in the case at bar and are not at variance with the affirmance of the judgment in the instant case. While it is true that the plaintiff testified to the effect that he and the ticket agent, Proctor, saw a light which they thought was from a railroad engine, they investigated and he, the plaintiff, concluded that the light was from an automobile on Railroad Avenue and that from his familiarity with the place and surroundings and from his experience, he had mistaken lights on automobiles on Railroad Avenue for headlights of trains on the defendant's tracks, — the avenue and the tracks running parallel at the place where the lights were seen. The plaintiff further testified that the lights disappeared and he came to the conclusion that the lights which he saw were from an automobile and not from a train. The jury might have attached significance to the fact that the ticket agent of the defendant, who was sworn as a witness in the case, was not used to contradict the testimony of the plaintiff. They were both equally familiar with the surrounding circumstances on the occasion of the collision. The jury in this view were authorized to conclude (the plaintiff and the ticket agent having discussed the appearance of the headlight which they saw) that the plaintiff did exercise some degree of care in determining whether the defendant's train was approaching. The jury were thus authorized to consider the degree of care exercised by the plaintiff. They were authorized to conclude that the plaintiff, while exercising some care, was not wholly blameless, but that he was less to blame or less negligent than the defendant in the operation of its train, and was therefore entitled to recover under the comparative negligence principle. The appellate courts in negligence cases of this sort, where the sufficiency of the petition was attacked by demurrer, have many times held that questions of negligence and the proximate causes of an alleged injury are peculiarly question of fact for the jury to solve and not questions of law for the courts except in palpably clear, plain, and undisputed cases. Lanier v. Turner, 73 Ga. App. 749 (38 S.E.2d 55). When we step from the rule which prevails as to pleadings, to the principle which governs in determining whether the finding of the jury should be sustained or reversed, we have the principle which we are bound to follow in jury verdicts. That principle is clearly expressed in the case ofScribner's Sons v. Mutual Building Co., 1 Ga. App. 527 (58 S.E. 240), as follows: "Where the question in a case is one of fact, every presumption is in favor of the verdict of the jury that they found what was the truth about the matter; and the record must affirmatively show that the verdict was contrary to law before it can be set aside. Maddox v. Cross, 80 Ga. 105." It is well recognized that this court is without authority to grant new trials except for errors of law. Under the evidence in this case this court is without authority to reverse the verdict and judgment of the court below. The trial judge, on a motion for a new trial, approved the verdict. From the evidence which we have set forth from the record, it is clear to us that there is evidence sufficient to sustain the verdict. In this phase of our remarks we wish to call attention to Centralof Georgia Railway Company v. Harden, 113 Ga. 453 (38 S.E. 949). The Supreme Court gives a lengthy and learned treatment in which the authority of the trial court and the appellate court is differentiated in the matter of setting aside the findings of fact of a jury.

In view of the authorities, we can not hold as a matter of law that the judgment should be reversed for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.