Smith v. Atlantic Coast Line Railroad , 75 Ga. App. 346 ( 1947 )

The court did not err in sustaining the demurrer and dismissing the petition.

DECIDED JUNE 27, 1947. Ola Smith sought to recover damages from the Atlantic Coast Line Railroad Company and its engineer for the negligent death of her husband. A demurrer was filed by the defendants. The court sustained the demurrer and dismissed the petition, and to this judgment the plaintiff excepts.

The material allegations of the petition are:

"5. At all times mentioned in this petition the defendant Paulk was a servant and employee of the defendant railroad company and at all such times was acting in the discharge of his duties as such servant and employee, he being so employed as an engineer and as such required, among the other duties required of him, to drive and operate a certain locomotive engine of the defendant railroad company designated as a ``switch engine' and to assist in the making up, breaking up and to deliver all freight cars that might come in to the defendant railroad company's switch yards for delivery to various side tracks owned and operated by the defendant railroad company adjacent to the main line of the defendant railroad company including that certain siding adjacent to the main line of said defendant railroad company situated approximately one mile beyond the switch yards of the defendant railroad company as hereinafter more fully set forth.

"6. For more than 50 years preceding the date of the death of plaintiff's husband the main line of said railroad going north from the City of Thomasville has crossed two public streets in said city known as Calhoun and Webster Streets, the said streets being one block apart or approximately a distance of 500 feet; both of said streets extending from east to west.

"7. Approximately ten years prior to the homicide of plaintiff's husband, a large meat packing plant known as Georgia Packing Company was erected along the main line of the defendant railroad company within the limits of the City of Thomasville approximately one mile north of the defendant railroad company's switch yards and approximately three quarters of a mile from the north side of the crossing at Calhoun Street. In order to facilitate its business by delivery of all cars consigned to said Georgia Packing Company to the side track aforesaid by the use of its switch engines, it was necessary for the said switch engines and cars to be driven over the public crossing at Calhoun Street and along the main line of the defendant railroad company between the public crossings at Calhoun and Webster Streets in said city.

"8. At such public crossings and between the two streets mentioned the main line of the defendant railroad company ran through densely populated section of said city; it being a city of approximately 20,000 inhabitants.

"9. There was no obstruction between said crossings to prevent the defendant engineer from having a clear view of the track between the two aforesaid street crossings which track was, at that locality, perfectly level and straight for a distance of at least 500 feet.

"10. For more than 10 years preceding the death of the plaintiff's said husband the public generally, including all persons residing adjacent to said railroad track and on the two streets aforesaid, have constantly, with the implied assent of the defendant railroad company, both by day and by night, in large numbers, used and walked along a well-beaten pathway on said track and by the sides thereof in going from the Calhoun crossing to the Webster Street crossing, which fact was well known to the defendant railroad company and to the defendant engineer Paulk.

"11. In delivering cars to Georgia Packing Company or returning cars therefrom, the said locomotive and cars were not run on any fixed schedule, but ran at such times by day or night as might become necessary to deliver cars to the Georgia Packing Company and return empty cars therefrom.

"12. On the night of July 14, 1946, at or about the hour of 10 o'clock p. m., plaintiff's said husband entered upon said pathway at the north side of the public crossing at Calhoun Street, and started to walk along said well-beaten pathway going north toward the Webster Street crossing. After he had gone less than 50 feet, a certain switch engine in charge of the defendant Paulk pushing one or two box cars in front of him going to said Georgia Packing Company siding was run over from behind, knocked down and dragged under said box car a distance of approximately 100 feet, as a result of which the body of her husband was mangled and mutilated; as a result of which your petitioner's husband died.

"13. Your petitioner shows that the defendant Paulk had so coupled the said switch engine to said box cars that the said box cars were directly in front of said engine with the result that the headlight on said switch engine was so close to the end of the box cars to which it was coupled, the said box cars being then and there pushed ahead of said engine, that the entire rays of said headlight were reflected upon the end of the box cars to which it was coupled, which so obscured the rays of said headlight that it was impossible for said rays to be reflected along the track ahead of said box cars so as to put petitioner's husband on notice that said box cars and engine were approaching him from the rear and so obscured the vision of the said engineer that he could not keep a vigilant outlook ahead of said engine for the purpose of discovering any person who might be on said pathway at that place, including your petitioner's husband.

"14. Your petitioner avers that on approaching said crossing at Calhoun Street and the pathway herein referred to the said engineer negligently failed as a signal of approach thereto to blow two long and two short blasts, and likewise failed to toll the engine bell to put your petitioner's husband on notice of the approach of said train from the rear.

"15. Petitioner avers that said defendant engineer negligently failed to keep and maintain a constant and vigilant outlook along the track ahead of said engine and likewise failed to exercise due care after passing over said crossing in order to avoid doing injury to your petitioner's husband at a point within 50 feet from said crossing.

"16. Your petitioner shows that no signaling device or light of any kind was placed on the front end of the box car furthest from said locomotive by said engineer and likewise no watchman was placed on the end of said box car by said engineer to keep a constant and vigilant outlook along said track ahead of said moving box cars so as to give notice to petitioner's husband that said box cars were being pushed upon him from behind.

"17. Petitioner avers that if said engineer instead of pushing said box cars backward had so coupled said locomotive to said cars so that its headlight was reflected along the track ahead of it, and if said whistle had been sounded and said engine bell tolled or either of these things done, plaintiff's husband would have discovered its approach in time to have removed himself to a place of safety.

"18. Petitioner avers that said engine and box cars were gliding and rolling along without making any noise to attract the attention of petitioner's husband.

"19. Petitioner avers that her said husband did not see or hear said box cars approaching him from the rear.

"20. Petitioner shows that said engine and box cars were moving slowly and could have been brought to a stop within a distance of approximately 30 feet and thus prevented the killing of her husband.

"21. Your petitioner avers that the defendant engineer under the facts herein set forth was under the duty to anticipate the presence of petitioner's husband at the time and at the place where he was killed.

"22. Plaintiff avers that her said husband was at the time he was run over and in walking along said pathway in the exercise of ordinary care for his own safety.

"23. Petitioner avers that at the time of her husband's death he was 40 years of age and had an expectancy of life of 27.61 years, was of sound physical health and earning and capable of earning $50.00 per week.

"24. Plaintiff avers that the defendant engineer was negligent in failing to anticipate the presence of plaintiff's husband at the point where he was killed and failed to exercise ordinary care for the discovery of the plaintiff's husband.

"25. Defendant engineer was further negligent in that he failed to keep a constant and vigilant outlook ahead of said engine.

"26. Defendant engineer was further negligent in failing to blow the locomotive whistle or toll the engine bell; in failing to have any light or watchman on the end of the box car nearest your petitioner's husband.

"27. Petitioner avers that the said defendant engineer was negligent in pushing said box cars ahead of said locomotive at night without any light or watchman on the end of the car nearest your petitioner's husband.

"28. The said defendant engineer was guilty of gross negligence in driving said box cars ahead of said locomotive at night with said locomotive so coupled to said cars in the rear of said box cars that the rays of the headlights on said locomotive centered on the end of the box cars to which it was coupled only a few feet in front of said headlight from being reflected ahead of said engine and ahead of such box cars, thus voluntarily putting himself where he could not keep a lookout along said track ahead of said engine and said cars, and by so doing obscured his vision along said track.

"29. Petitioner avers that the negligence aforesaid of the servant engineer was in law the negligence of the master, and avers that the acts of negligence as herein set forth caused, contributed to and was the direct and proximate cause of the death of plaintiff's husband."

The demurrer alleges: "(1) That said petition fails to show any cause of action against the defendant; (2) that said petition shows that the plaintiff's husband was not in the exercise of ordinary care for his own safety." 1. (a) It is conceded that the deceased was a trespasser. It must be conceded also that he was a mature man, in the possession of all his faculties and senses. The gist of the contentions of the plaintiff is that the engineer in moving "one or two box cars" northward on the main track of the railway company, had coupled the front of the switch engine to the rear of one of the cars, which cars were being pushed toward the packing plant. Thus it was that the engineer obstructed his vision along the track to such an extent that he could not see one on the track and that in so doing the defendant was guilty of gross negligence. It therefore follows, logically, that the engineer did not see the deceased before the car struck and killed the deceased. The petition alleges that the railroad track traversed a populous section of the City of Thomasville, and that the general public had, for a number of years, been using, with the knowledge of the defendant, footpaths on either side of the track. The paths were located so near the track that one using them would be struck by a moving train on the track unless the pedestrian stepped aside. There were two streets about 500 feet apart, which intersected the railroad track at right angles. Collins Street is located south of Webster Street. The deceased was traveling west on Collins Street and entered upon the path on the east side of the railroad track and proceeded northward toward Webster Street in the same direction the cars were moving. Before the deceased had walked 50 feet (the petition is silent as to how far he did walk after entering upon the path), the cars struck him from the rear, dragging him about 100 feet and to his death. We think this is a clear, brief summary of the situation as depicted by the petition. In such a situation the defendant owed to the plaintiff no duty other than not to wilfully or wantonly injure or kill him. It was the duty of the deceased to use ordinary care to protect himself.

It is the contention of counsel for the plaintiff that if the cars had been coupled to the rear of the switch engine that the deceased could have discovered the cars approaching from the rear and that likewise the defendant could have seen the deceased and stopped the engine within 30 feet before striking the deceased.

(b) The allegations of the petition do not charge wilful and wanton negligence. They charge only gross negligence. "Negligence, including gross negligence, and wilful and wanton misconduct, are not construed in this State as synonymous terms.Harris v. Reid, 30 Ga. App. 187 (117 S.E. 256); Centralof Georgia Ry. Co. v. Stamps, 48 Ga. App. 309 (5) (172 S.E. 806); Buffington v. A. B. C. R. Co., 47 Ga. App. 85, 88 (2), 89 (169 S.E. 756)." The same authority says: "If, however, the presence of a trespasser on the track at the time and place of the injury is brought about by peculiar facts and circumstances which relieve him from the guilt of a lack of ordinary care in thus exposing himself, the company might be liable for a mere lack of ordinary care on its part in failing to anticipate his presence at a time when and a place where it was charged with such duty, and in thereafter failing to take such proper precautions for his safety as might seem reasonably necessary." See also Central Railroad Banking Co. v. Smith, 78 Ga. 694 (3 S.E. 397); Smith v. Central R. Banking Co.,82 Ga. 801 (10 S.E. 111); Wilds v. Brunswick Western R.Co., 82 Ga. 667 (9 S.E. 595); Western Atlantic R. v.Bloomingdale, 74 Ga. 604; Hankerson v. Southwestern R.,59 Ga. 593; Southwestern R. v. Hankerson, 61 Ga. 114;Southwestern R. v. Hankerson, 72 Ga. 182; White v.Central R. Banking Co., 83 Ga. 595 (10 S.E. 273); CentralRailroad Bkg. Co. v. Denson, 84 Ga. 774 (11 S.E. 1039);A. W. P. R. Co. v. Loftin, 86 Ga. 43 (12 S.E. 186);Richmond Danville R. Co. v. Watts, 92 Ga. 88 (17 S.E. 983); Ashworth v. East Tenn., Va. Ga. R. Co., 97 Ga. 306 (23 S.E. 86); Parish v. W. A. R. Co., 102 Ga. 285 (29 S.E. 715, 40 L.R.A. 364); Hall v. W. A. R. Co., 123 Ga. 214 (51 S.E. 311); Moore v. Southern Ry. Co., 136 Ga. 872 (72 S.E. 403); Rollestone v. Cassirer, 3 Ga. App. 175 (59 S.E. 442); Bugg v. Knowles, 33 Ga. App. 710 (127 S.E. 813); Southern Ry. Co. v. Lomax, 67 Ga. App. 406 (20 S.E.2d, 437); Georgia R. Bkg. Co. v. Dawson, 37 Ga. App. 542 (141 S.E. 57); Thornton v. Southern Ry. Co., 71 Ga. App. 530 (31 S.E.2d 189); Southern Railway Co. v. Hicks,61 Ga. App. 307 (6 S.E.2d 193); Kennemer v. W. A. R. Co.,42 Ga. App. 266 (155 S.E. 771); Leverett v. L. N. R.Co., 38 Ga. App. 155 (142 S.E. 905); Collett v. A. B. C.R. Co., 51 Ga. App. 637 (181 S.E. 207); Southern Ry. Co. v.Evans, 56 Ga. App. 177 (192 S.E. 505); Atlanta CharlotteAir-Line Ry. Co. v. Gravitt, 93 Ga. 369 (20 S.E. 550, 26 L.R.A. 553, 44 Am. St. R. 145); Devane v. Atlanta B. A. Ry.Co., 4 Ga. App. 136 (60 S.E. 1079); Southern Ry. Co. v.Duke, 16 Ga. App. 673 (85 S.E. 974); Pollard v. Todd,62 Ga. App. 251 (8 S.E.2d 566); Southern Ry. Company v.Perkins, 66 Ga. App. 66 (17 S.E.2d 95); Callaway v.Zittrouer, 69 Ga. App. 338 (25 S.E.2d 311); Southern Railway v.Barfield, 112 Ga. 181 (37 S.E. 386); Powell v. Smith,70 Ga. App. 754 (29 S.E.2d 521). The petition in the instant case does not allege any particular facts and circumstances which might relieve the deceased from the lack of ordinary care in exposing himself. A. C. L. R. Co. v. Fulford, 159 Ga. 812 (127 S.E. 274); Lowe v. Payne, 156 Ga. 312 (118 S.E. 924); Young v. South Ga. R. Co., 34 Ga. App. 537 (130 S.E. 542); Dodson v. So. Ry. Co., 55 Ga. App. 413 (190 S.E. 392); Central of Georgia Railway Co. v. Stamps, 48 Ga. App. 309 (172 S.E. 806). It therefore follows that it may be conceded that the defendant was guilty of gross negligence as alleged in the petition, and still not be liable under the allegations of the petition, for the reason that it appears from the allegations of the petition that the deceased failed to exercise ordinary care for his own safety. The case therefore, on the issue formed by the demurrer to the petition, resolves itself into a case of simple negligence. Luck v. W. A. R. Co., 73 Ga. App. 197 (36 S.E.2d 59). See also, in this connection, A. C. L. R.Co. v. Fulford, supra; Redding v. Callaway, 74 Ga. App. 855 (41 S.E.2d 804).

(c) To sustain their contention that the court erred in sustaining the demurrer counsel for the plaintiff cite: Lowe v.Payne, supra; Central Railroad Bkg. Company v. Denson, supra; Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S.E. 1060); Southern Railway Co. v. Chatham, 124 Ga. 1026 (53 S.E. 692, 6 L.R.A. (N.S.) 283, 4 Ann. Cas. 675); Atlantic CoastLine R. Co. v. Health, 57 Ga. App. 763, 771 (196 S.E. 125). Upon a careful reading of these cases, we reach the conclusion that under their facts they furnish no basis for reversing the judgment of the trial court in the instant case. The allegations of the petition do not allege such facts as would justify an inference under the decisions of this State, as we construe them, that would warrant a recovery by the plaintiff against the defendant in the instant case.

The court did not err in sustaining the demurrer and dismissing the petition for any of the reasons assigned.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.