Bugg v. Cook

Jenkins, P. J.

(After stating the facts.) 1.' The evidence, though in conflict, was sufficient to authorize the verdict. There was positive evidence that the crossing was on a public road. Defendant did not rebut this testimony' by- evidence to the contrary. While one of the burdens resting upon the plaintiff in a case of this sort is to prove that the crossing was on a public highway, yet there being positive evidence to this effect which was uncontroverted by other testimony, and to the introduction of which no objection was taken, the verdict will not be set aside because of failure to prove the manner and method of the establishment of the public highway as such. Hutchinson v. State, 8 Ga. App. 684 (1) (70 S. E. 352).

2. Under the present “blow-post law” (Ga. L. 1918, p. 212, 8 Park’s Code Supp. (1922), § 2677 et seq.) it is the duty of railway companies to establish blow-posts for public crossings as therein provided, and when the engineer in charge of a train reaches such a blow-post with his locomotive he is required (except in incorporated towns and cities) to blow “two long and two short blasts at intervals of five seconds between each blast; said blasts to be loud and distinct. In addition thereto, after reaching the blow-post furthest removed from said crossing, and while approaching said crossing, he shall keep and maintain a constant and vigilant lookout along the track ahead of said engine, and shall otherwise exercise due care in approaching said crossing, in order to avoid doing injury to any person or property which may be on such crossing, or upon the line of said railway at any point within fifty feet of such crossing.” A failure to observe the specific duty imposed with reference to giving the signals indicated amounts to negligence per se (Louisville & N. R. Co. v. Faust, 30 Ga. App. 310, 117 S. E. 761 (2)); besides which the engineer is required to exercise “due care” in order to avoid accident in approaching the crossing. While the standard of diligence required of the railway company is thus invariable (Central R. Co. v. Ryles, 84 Ga. 420, 11 S. E. 499; Cen. of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110 (6), 103 S. E. 259), what constitutes due care or a lack of it in any particular case, except as relating to acts constituting negligence per se, lies peculiarly within the province of the jury, for them to determine in the light of all the surrounding facts and circumstances. Larkin v. Andrews, 27 Ga. App. 685 (1) (109 S. E. 518). It is even true that “language used by the Supreme Court in deciding a case before it, especially where used in discussing the facts of such case, is often inappropriate for use by the judge of a trial court in charging the jury.” Atlanta R. Co. v. Hudson, 123 Ga. 108 (2) (51 S. E. 29); Ga. Ry. & Power Co. v. Shaw, 25 Ga. App. 146 (1 a) (102 S. E. 904). Moreover, since in the instant case, the evidence for the plaintiff was to the effect that the defendant had failed to give the signals required by law, to have given the requested instructions without qualification would have had the effect of assuming, in the face of the plaintiff’s evidence to the contrary, that the engineer had not violated his own duty to sound the signals, since one who is “grossly negligent himself has no right to count on due diligence by others.” See Davis v. Whitcomb, 30 Ga. App. 499 (118 S. E. 488 (8, 9)).

Judgment affirmed.

Stephens, J., concurs. Bell, J., disqualified.