Gay v. Sylvania Central Railway Co. , 79 Ga. App. 362 ( 1949 )

1. "Where the process contains a command to the defendant to appear in court at a certain time for a specified purpose, and where the process is actually executed by the proper officer, the mere fact that the formal direction to the officer to execute the process is omitted therefrom would be at most a mere clerical omission or irregularity which could be cured by amendment"; and the trial judge did not err in allowing the amendment to the process, and in thereafter overruling the defendant's motion to dismiss the petition, and in overruling the defendant's demurrer on the ground that the process was defective.

2. The trial judge did not err in overruling the special demurrer to the petition.

3. The allegations of the petition are sufficient to state a cause of action, and the trial judge did not err in overruling the general demurrer thereto.

4. When it appeared from the evidence that the plaintiff's husband was killed in a collision of his automobile and the defendant's locomotive at a railroad crossing under the facts and circumstances set out, and where no evidence was introduced by the defendant that its employees were exercising reasonable skill and care in the operation of the train at the time and place in question, a prima facie case, under the presumption statute, was made out in favor of the plaintiff, and the court erred in granting a nonsuit. Under the facts and circumstances of this case, it was a question for the jury to determine whose negligence was responsible for the collision in question and the resulting death of the plaintiff's husband.

DECIDED JUNE 1, 1949. Mrs. Wudie Gay sued Sylvania Central Railway Company for damages on account of the death of her husband, which occurred when the automobile that he was driving and a locomotive of the defendant railroad collided at a grade crossing.

From the allegations of the petition, as amended, it appears, among other things: that, at about 11:30 a. m on October 8, 1947, the deceased, John R. Gay, was driving a Plymouth sedan automobile on the Sylvania-Millen highway, at a moderate and safe rate of speed, in a northwesterly direction toward Millen, and was approaching a point where the tracks of the defendant railroad cross the highway; that at this point, on account of certain trees and bushes, buildings, and stacks of lumber, which are described in the petition, it was impossible for a motorist to see a train approaching from the south until within a few feet of the crossing; that a locomotive of the defendant, with several cars attached, was approaching from the south, and collided with the car occupied by the deceased, as a result of which he was instantly killed; that said collision was the result of the negligent and careless operation of the locomotive; that the engineer and crew of the train approached the crossing without ringing the bell, blowing the whistle, or giving any warning whatsoever; that said locomotive was being operated at a speed greater than was reasonable and safe; that the engineer and the crew failed to keep a proper lookout; that, although the engineer failed to keep a proper lookout, he did see John R. Gay in time to stop the locomotive had it been traveling at a reasonable rate of speed; and that the engineer knew that Gay could not see the approaching train because of obstructions. The petition also contains allegations showing the jurisdiction of the court, the earning capacity of the deceased, and the value of his life.

The defendant appeared specially and moved to dismiss the petition. The only ground of this motion on which an issue is now made is that the process was void because it contained no direction to any officer. The plaintiff moved to amend the process in this respect by having it directed to the Sheriff of the City Court of Sylvania and his lawful deputies. Written objection to this amendment was made by the defendant on the ground that the process was void and not amendable. The trial judge allowed the amendment to the process and overruled the defendant's motion to dismiss.

The defendant demurred generally and specially to the petition, and added additional grounds of demurrer after the plaintiff amended her petition. The trial judge overruled all grounds of demurrer, and the case proceeded to trial before a jury.

In its answer the railroad company admitted that John R. Gay was killed on October 8, 1947, when the car which he was driving collided with the defendant's locomotive. On the trial the plaintiff, Mrs. Gay, testified in respect to her late husband's income, his earning capacity, and age. He had been working for his employer, Statesboro Grocery Company, for two years and three months before his death, and had regularly traveled the route from Sylvania to Millen weekly during this period. Mrs. R. C. Aaron identified a number of pictures which she took at the scene of the accident about an hour after it happened. From the pictures, which are included in the evidence it appears that stacks of lumber and certain buildings would somewhat obscure the view of the railroad from the driver of an automobile approaching the crossing as the deceased was. Mrs. Aaron testified that it was impossible to see a train until one was almost upon the crossing. W. H. Black testified: that he was the Chief of Police of the City of Sylvania; that he went to the scene of the occurrence almost an hour after it happened, about 1 p. m.; that a motorist coming toward Millen in the proximity of the scene of the occurrence would have his vision obscured by a thick row of bushes and trees, located about 100 yards or more from the crossing and running at right angles to the highway on the left side [the side from which the train was approaching at the time of the occurrence]; that after one went past this row of bushes and trees the stacks of lumber and buildings of the Smith-Chivers Lumber Company would obscure his vision; that the crossing was inside the city limits of Sylvania; that the schedule of the train was to leave Sylvania at 8 (a. m.) and return at 11 (a. m.); that he saw the sign on the locomotive where something had struck it; that the back wheel of the engine, close to and right under the driver of the locomotive, was hit. The documentary evidence includes the pictures of the scene made and identified by Mrs. Aaron, the Carlisle mortality tables, and a copy of the deceased's birth certificate.

On motion of the defendant a nonsuit was granted, and the plaintiff excepted to this judgment. The defendant excepted to the ruling allowing the amendment to the process, the overruling of the motion to dismiss the petition, and the overruling of the demurrer to the petition. 1. It appears from the record that the original process which was annexed to the petition was not directed to any officer, although it contains the usual direction to the defendant to be and appear in court and make answer to the complaint. The defendant, appearing specially, moved to dismiss the petition on account of the defect in the process. The plaintiff moved to amend the process so as to have it properly directed to the Sheriff of the City Court of Sylvania and his lawful deputies, and the defendant objected, contending that the process was void without this direction. The trial judge allowed the amendment to the process, and overruled the defendant's motion. One of the grounds of demurrer which the trial judge overruled is the same as the motion to dismiss because of the defect in the process. Process for service and appearance, which is annexed to the petition, is not a part of the pleading of the plaintiff, but is a writ issued by the clerk of the court. It is an order of the court and is issued in the name of the judge, and it is the duty of the clerk to perform this function. Code (Ann. Supp.) § 81-201 provides that: "The clerk shall annex to every petition a process (unless the same shall be waived), signed by the clerk or his deputy, and bearing teste in the name of a judge of the court, and directed to the sheriff or his deputy." By virtue of the process and service thereunder, the defendant is brought into court. If, by virtue of a process, although defective, a defendant has been properly served by one lawfully authorized to effect the service, as was done in this case, although the process was not so directed to the officer, and if that process has properly put the defendant on notice of the proceeding, and when his appearance will be required, such process has properly served its purpose. In Neal-Millard Co. v. Owens, 115 Ga. 959, 963 (42 S.E. 266), it was said: "Where the process contains a command to the defendant to appear in court at a certain time for a specified purpose, and where this process is actually executed by the proper officer, the mere fact that the formal direction to the officer to execute the process is omitted therefrom would be at most a mere clerical omission or irregularity which could be cured by amendment." The Code, § 81-220, provides that no technical or formal objections shall invalidate any process, but that, if the same shall substantially conform to the requisites of the Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded, provided a legal cause of action is set forth. Section 81-1205 is as follows: "The mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party, where by amendment justice may be promoted." Code § 24-104 (6) provides that every court has power "To amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records, so as to make them conform to the truth." See, in this connection, Code, § 81-1201;Richmond Danville R. Co. v. Benson, 86 Ga. 203 (12 S.E. 357, 22 Am. St. Rep. 446); Winn v. Butts, 127 Ga. 385, 388 (56 S.E. 406); Giles v. Cook, 146 Ga. 436 (1) (91 S.E. 411); Hogan v. Hogan, 148 Ga. 151 (95 S.E. 972); Betton v. Avery, 180 Ga. 110 (178 S.E. 297). It follows that the trial judge did not err in allowing the amendment to the process, and in thereafter overruling the motion to dismiss the petition, and in overruling the defendant's demurrer on the ground that the process was defective.

2. Counsel for the railroad state in their original brief that, "In support of grounds 3, 4, 5, 6, 7, 8, 9, and 10 of the original demurrer and grounds 11, 12, and 13 of the amended demurrer, we submit that each and all of said grounds should have been sustained for the reasons therein set forth," but they do not argue the special demurrers nor cite any authority in support of the same. The special demurrers are directed to the language contained in certain paragraphs of the petition, as either being vague or indefinite, or a conclusion of the pleader, and it is apparent from the record that the plaintiff amended her petition to meet certain of these grounds. We have examined these special demurrers, and they are without substantial or material merit, and the trial judge did not err in overruling them.

3. Counsel for the railroad insist that the trial judge erred in overruling the general demurrer to the petition, and argue this question at length. In considering whether or not the petition states a cause of action, this court is bound by the allegations of the petition and cannot consider the answer of the defendant or the evidence. According to the petition, it was impossible for the deceased to see the train until he was almost upon the crossing; he was operating the automobile at a moderate and safe rate of speed; no warning whatsoever was given of the approach of the train; the locomotive was being operated at a speed greater than was reasonable and safe; and the engineer and crew failed to keep a proper lookout, although the engineer could have seen the deceased in time to stop the locomotive if it had been moving at a reasonable and safe rate of speed. The defendant contends that, if the engineer could see the deceased's automobile, the driver of the automobile could also have seen the train or should have seen the train, and that such circumstances indicate that the accident was caused by the negligence of the driver of the automobile. Although the driver of the automobile may have been able to see the train, still his attention was not directed to the train in time to avoid a collision, on account of the failure of the operators of the train to give any warning of its approach to the crossing, by ringing the bell, blowing the whistle, or other warning. In the exercise of ordinary care, the employees of the defendant were under a duty to operate the train at a moderate and safe rate of speed. They were also under a duty to keep a proper lookout ahead and to warn the public of the approach of the train to the crossing, and, if it was apparent that a motorist was approaching or about to use the crossing, to check the speed of the train or take whatever precautions were necessary in order to avoid injury to the motorist. This, of course, would not relieve the motorist of the duty, in the exercise of ordinary care, to observe the crossing and to determine whether or not the approach of a train made it safe to go upon the crossing. The petition does not affirmatively or by inference show that the collision was caused by the negligence of the driver of the automobile, or his failure to exercise ordinary care, but even if it were shown by the petition that the negligence of the deceased contributed to the collision, unless it was shown that it was in a degree equal to or greater than that of the railroad, it would not be a bar to recovery on the part of the plaintiff, and would not excuse the negligence on the part of the operators of the train, if that negligence was shown to have been the proximate cause of his death. The allegations of the petition are sufficient to state a cause of action, and the trial judge did not err in overruling the general demurrer thereto. See Pollard v. Roberson, 57 Ga. App. 621 (195 S.E. 897); Callaway v.Pickard, 68 Ga. App. 637 (23 S.E.2d 564); Mann v.Central of Ga. Ry. Co., 43 Ga. App. 708 (160 S.E. 131).

None of the cases cited and relied upon by the railroad company authorizes or requires a different ruling on the general demurrer to the petition from the one here made. For a collection of cases of this sort, involving crossing collisions, where the petition failed to state a cause of action, see Evans v.Georgia Northern R. Co., 78 Ga. App. 709 (52 S.E.2d 28).

4. "In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of servants of the companies in reference to such injury." Code, § 94-1108. It was alleged in the petition that the plaintiff's husband was killed when the locomotive of the defendant's train collided with the deceased's automobile at a grade crossing, and it appears from the evidence that his death was the result of a collision between his car and the defendant's locomotive at said railroad crossing. The presumption afforded by the above statute is a rebuttable presumption and disappears when the railroad company introduces evidence showing the exercise of reasonable care and skill, that is, ordinary care, by its employees in the operation of the train at the time and place in question. See Atlantic Coast Line R. Co. v. Martin, 79 Ga. App. 194 (53 S.E.2d, 176), and citations. The defendant railroad here, however, introduced no evidence, but instead moved for a nonsuit, which was granted. It is well settled that in reviewing the evidence on a judgment of nonsuit, this court ordinarily must take that view of the evidence most favorable to the plaintiff. Code § 110-310 provides: "A nonsuit should not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." When it appeared from the evidence that the plaintiff's husband was killed in a collision of his automobile and the defendant's locomotive at a railroad crossing under the facts and circumstances above set out, and where no evidence was introduced by the defendant that its employees were exercising reasonable skill and care in the operation of the train at the time and place in question, a prima facie case, under the above-quoted presumption statute, was made out in favor of the plaintiff, and the court erred in granting a nonsuit. Under the facts and circumstances of this case, it was a question for the jury to determine whose negligence was responsible for the collision in question and the resulting death of the plaintiff's husband. See Collier v. Pollard, 60 Ga. App. 105 (2 S.E.2d 821).

Judgment affirmed on the cross-bill of exceptions, andreversed on the main bill. Felton and Parker, JJ., concur in theaffirmance of the cross-bill. On the main bill, Parker, J.,concurs, and Felton, J., concurs in the judgment.