Western & Atlantic Railroad v. Leslie , 48 Ga. App. 714 ( 1934 )

Jenkins, P. J.

1. In this action to recover for personal and property damage from the railroad, the court did not err in overruling the general demurrer to the petition, which alleged that a locomotive and train of the defendant struck the automobile of the plaintiff on a city public crossing just as he entered upon its track, at night during a fog of such density that objects could not be seen for more than five or six feet, that the train was traveling at excessive speed and without ringing a bell, both in violation of city ordinances, and without giving any other warning of its approach, and that the plaintiff, before entering the track, looked and listened for the approach of trains, but saw and heard nothing.

2. The contention upon the special demurrer to the allegations of speed, that the injury necessarily would have occurred regardless of the speed of the train, under the averment in the petition that an “object could not have been seen for more than five or six feet,” because the train could not have been stopped within that distance so as to avoid the injury, is without merit. It can not be held, as a matter of Jaw, from the statements of the petition, that the alleged negligence of the defendant in operating its trains at a speed of forty-five miles an hour, in excess of the fifteen miles an hour provided by city ordinance, or at more than four miles an hour, which it is alleged was the maximum proper speed under the particular circumstances, could not, under all the facts, have caused, or partly caused, the collision, and have caused or increased the severity of the alleged injuries. In the instant case the degree of speed, determining the length of time during which the plaintiff might have heard the approach of the train, may have materially affected his ability to hear its approach, even though he might not have been able to see it. Proximate cause and the negligence or degree of negligence of the respective parties in cases of collisions between automobiles or automobiles and trains, where the various interacting and interrelating acts or omissions of the parties to cause or avoid injuries all may occur within a split fraction of a second, can rarely be so differentiated, narrowed, and separately dealt with as would authorize a determination upon the pleadings by mathematical calculation. Such issues must ordinarily be determined by the jury according to the proof and the reasonable inferences which may be drawn therefrom, in the light of all the material facts and surrounding circumstances.

Decided January 31, 1934. Adhered to on rehearing March 2, 1934.

3. In Western & Atlantic Railroad v. Crawford, 47 Ga. App. 591 (170 S. E. 824), where a similar ease was presented by the petition, it was held that, “if, under the allegations of the petition, . . it was impossible for the plaintiff, on account of the deep cut immediately north of the crossing, to see the approach of the train . . until it was within five or six feet of the crossing, for the same reason it would be impossible for the defendant’s servants to see the approach of the plaintiff,” and that consequently the allegations that the engineer “while approaching said crossing failed to keep and maintain , a constant and vigilant lookout along the tracks ahead of said engine,” were subject to special demurrer; and reversible error having been committed in failing to sustain such special demurrer, the subsequent proceedings and judgment for the plaintiff were nugatory. The charge of negligence here as to the failure to keep a lookout was the same as in that case; and there is no essential difference in the physical facts here alleged by the petition, that the thickness of the fog rendered it impossible to see the approaching engine, or other objects, for more than five or six feet, from those stated in the Crawford case. In the Crawford case the petition averred that the ravine prevented such vision for more than five or six feet. In this case the petition shows that the dense and murky fog prevented vision for just the same distance. The judge in the instant case charged this ground of negligence relative to the absence of a lookout. It was therefore error to overrule this special ground of demurrer, and this error rendered nugatory all the subsequent proceedings and the judgment for the plaintiff.

4. Under the cross-bill of exceptions, assigning error on the disallowance of the plaintiff’s amendment, that the acts of the watchman of the defendant at the crossing in rushing out in front of the plaintiff’s automobile and gesticulating were negligence (even if the averments that this conduct “may hasve caused petitioner to throw on his brakes,” but he is “wnahle to aver positively” whether he did or did not, could be taken as sufficiently charging that such a result from this conduct actually took place), these acts can not be taken as having caused or partly caused the injury, in view of the further averments of the petition, which must be construed against the pleader, that the sight of the watchman by the plaintiff, the entrance of the plaintiff upon the track, and the crash of the engine against his automobile, “came practically simultaneously.” Accordingly, there was no error in refusing to allow this amendment to the petition.

Judgment reversed on main hill of exceptions; affi/rmed on cross-hill.

Stephens and Sutton, JJ., concur. Walton Whitwell, Mitchell & Mitchell, for plaintiff in error. J. A. McFarland, M. G. Tarver, contra.