Callaway v. Zittrouer , 69 Ga. App. 338 ( 1943 )

1. The allegations of the petition show that at the time the alleged damage occurred the truck was not on the railroad crossing, but was resting partly on the railroad track off the crossing and approach thereto. The only duty the defendant owed the owners of the truck was not to wilfully and wantonly damage it after its presence was discovered resting partly on the track.

2. The allegations of the petition, which fail to show that the servants of the defendant knew of the location of the truck on the railroad track, and affirmatively show that such operators of the train did not discover the location of the truck on the track, but negative such knowledge on the part of the engineer by alleging that he failed to see the truck because he was not at the time keeping a proper lookout, set forth no cause of action.

DECIDED APRIL 13, 1943. The plaintiffs sought to recover damages alleged to have resulted from the negligent operation of a train by the defendant. The material allegations of the petition are as follows: "1. That said defendant owns and operates a railroad passing through Effingham County, Georgia, and that said defendant does business in said county and has agents in said county. 2. That the said defendant, M. P. Callaway, as such trustee, on the 4th day of April, 1942, at about 11:30 o'clock p. m., was operating a train through the State of Georgia and said county on the main line of said railroad running from Atlanta to Savannah. 3. Petitioners show that about the halfway mark between the Town of Tusculum and the Town of Egypt in said county, there is a main crossing on said railroad which is generally used by the public who are constantly crossing to and for over said crossing. 4. The petitioners show that about 11:30 o'clock p. m., on April 4, 1942, one Lester Hodges was operating a 1940-model Chevrolet truck, 1 1/2 tons, which was the personal property of your petitioners, and attempted to cross the said crossing described above, travelling in a northerly direction toward the town of Egypt. That in rounding the curve on the approach to said railroad crossing, the driver of the said truck lost control of said truck and ran into a ditch on the left and northerly side of said public road. 5. That the roadbed on the approach to said crossing makes a right-angle curve on either side of said railroad crossing. 6. That when said automobile truck, after running into said ditch, came to a halt a portion of said truck was on the tracks of the railroad. 7. That after running said automobile truck into the ditch and a portion of said truck being on the railroad track, the driver of said automobile called assistance and made every effort to get the truck off the tracks of the Central of Georgia Railway Company. 8. Petitioners show that shortly after the time their truck had been run in the ditch with a portion of said truck being lodged on said track, a passenger train operated by said trustee, known as train No. 3, was seen approaching from the direction of Savannah, and that the driver of said truck with the help at hand was still making every effort to get said truck off said railroad track. 9. That the driver of said truck, after realizing that said truck could not be cleared off the railroad track, went down the track towards the oncoming train and flagged said train with burning paper in an attempt to stop said train. 10. That said train being operated by said trustee, travelling at a fast, reckless, and dangerous rate of speed, made no attempt to reduce its speed and stop, and ran into and damaged the truck of your petitioners. 11. Petitioners show further that neither the servants and agents of the said defendant, to wit: the engineer and fireman operating said train, were not looking ahead or keeping any lookout whatever for pedestrians and vehicles crossing said tracks upon said crossing and highway, but were operating said train at such fast and dangerous rate of speed without due regard for the protection of the lives and property of others, and without due care, and that said engineer on said train, by reason of not keeping a lookout ahead, failed to apply his brakes or use any other means to stop the said train until after he had struck the automobile truck. 12. Petitioners show further that the driver used every means and effort to prevent the approaching train from hitting their said automobile truck. 13. That the tracks upon which the passenger train herein complained of was being operated is straight for more than five miles in the direction from which said train was approaching, and that there was nothing to keep the engineer and fireman operating said train from seeing the driver of said truck as he attempted to flag said train or to keep them from seeing the truck on the railroad track in time to have stopped said train before running into said truck. 14. Petitioners show that as a result of the collision between the said passenger train and the aforementioned truck, their said truck was damaged in the sum of $577.75. 15. Petitioners show that the damage sustained by them was the direct and proximate result of the negligence of the said defendant as follows: (a) In operating said train through and over said railroad crossing at such fast, dangerous, and reckless rate of speed and without due care and caution in crossing said public highway. (b) In operating said train by and through his agents, servants, and employees without keeping and maintaining a constant and vigilant lookout along the tracks ahead of said engine while moving along said tracks on an approach to a crossing. (c) In failing to operate said train in a careful manner and at such a speed that it could have been stopped at said crossing in order to avoid damage to petitioners, or other persons who might be crossing said intersection of said tracks with said road, and also in failing to reduce the speed of such train upon its approach to said crossing in order to have had said train under complete control in order to stop the same and prevent the damage suffered by petitioners by reason of the negligence of said defendant as herein set forth."

The defendant filed a general demurrer which was overruled, and he excepted. The questions to be determined may be for convenience thus stated: (a) Was the truck on a public crossing when it was damaged? (b) If not on a public crossing at such time, do the allegations of the petition set forth a cause of action?

1. In construing a petition on general demurrer, it is elementary that it must be construed most strongly against the pleader. Moore v. Seaboard Air-Line Railway Co., 30 Ga. App. 466 (118 S.E. 471). By reference to the petition it will be noticed that it nowhere appears that the truck of the plaintiffs stopped on or near the crossing. It is alleged: "That in rounding the curve on the approach to said railroad crossing, the driver of said truck lost control of said truck and ran into a ditch on the left and northerly side of said public road. That the roadbed [of the public highway] on the approach to said crossing makes a right-angle curve on either side of said railroad crossing. That when said automobile truck, after running into said ditch, came to a halt a portion of said truck was on the tracks of the railroad." It thus clearly appears that the truck did not come to a halt at or on the crossing. It affirmatively appears that the truck left the highway on the approach to the crossing, and therefore did not halt on the crossing or on the approach thereto. It follows that when the truck came to rest partly on the track of the defendant it was not on the crossing.

2. We come next to the remaining question: What duty did the defendant owe to the plaintiffs under this situation? The plaintiffs' right to recover must be governed by the rule applicable to a trespasser. In Atlanta Charlotte Air-LineRailway Co. v. Gravitt, 93 Ga. 369 (4) (20 S.E. 550, 26 L.R.A. 553, 44 Am. St. R. 145), the Supreme Court held: "Relatively to a person who, without license from the company, is walking upon a railway track on a trestle, though such trestle be situated between a blow-post and a public crossing, the omission of the engineer to comply with the statutory requirements as to giving signals and checking the speed of the train, is not negligence, inasmuch as these requirements raise no duty as between the company and strangers who may be upon the track elsewhere than at a public crossing." In Central of GeorgiaRailway Co. v. McKey, 13 Ga. App. 477 (79 S.E. 378), this court held: "1. A railroad company, relatively to a person not upon or approaching a public crossing, is under no duty to comply with the statutory requirements as to giving signals and checking the speed of its train; and the failure to comply with such requirements is not, as to such a person, negligence for which damages may be recovered. . . 2. A driver of an automobile who undertakes to cross a railroad elsewhere than at a public crossing can not recover for injuries to the automobile, received in consequence of a collision with a passing train, solely upon the ground that the railroad company's servants failed to comply with the statutory requirements in reference to ringing the bell or blowing the whistle and checking the speed of the train. The only duty which the railroad company owes to a person in such a situation is not to injure him or his property wantonly or wilfully, and to use ordinary care to prevent such injury after the person or his property is discovered."

The duty which a railroad company owes to a trespasser is well settled. That duty is that the trespasser is not to be wilfully and wantonly injured after his presence is discovered. InPollard v. Todd, 62 Ga. App. 251, 257 (8 S.E.2d 566), this court held: "It is apparently conceded in the briefs of counsel for the defendant in error that the deceased was a trespasser at the time of the homicide, and that the duty of the railroad to protect him did not arise, under the circumstances of the present case, until the engineer saw him on the tracks of the defendant. `Ordinarily the only duty owing by a railway company to a trespasser upon or about its property is not to wantonly or wilfully injure him after his presence has been discovered.'Hammontree v. Southern Railway Co., 45 Ga. App. 728 (165 S.E. 913); Young v. South Georgia Railway Co., 34 Ga. App. 537 (130 S.E. 542); Central of Georgia Railway Co. v.Stamps, 48 Ga. App. 309 (3) (172 S.E. 806); Dodson v.Southern Railway Co., 55 Ga. App. 413, 418 (4) (190 S.E. 392); Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S.E. 36, 59 L.R.A. 592). `Even where a person on the track is in fact discovered, it is the general rule that a railway company is authorized to act on the presumption that a person apparently of full age and capacity, standing or walking along or near its track, will leave it in time to save himself, unless it should also appear that such trespasser is in an apparently incapacitated or helpless condition, so that he could not reasonably be expected to extricate himself from his peril.'Hammontree v. Southern Railway Co., Young v. South GeorgiaRailway Co., Dodson v. Southern Railway Co., supra. It is not contended in the present case that the deceased was otherwise than in full possession of his physical and mental powers. `The mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and a time when it was their duty to anticipate the presence of trespassers, and thereafter to take such needful and proper measures for his protection as ordinary care might require, might amount to a lack of ordinary care on the part of the railway company, but would not, in and of itself, amount to wilful and wanton misconduct.' Hammontree v. Southern Railway Co.,Dodson v. Southern Railway Co., supra; Lowe v. Payne,156 Ga. 312 (118 S.E. 924). `After the presence of a trespasser upon the track of the defendant in front of its approaching train is discovered, it becomes the duty of the agents in charge of the train to give him some warning of his dangerous position.'"

Also, to the same effect see Cantrell v. Pollard, 57 Ga. App. 413 (195 S.E. 766), as follows: "Wilful and wanton conduct on the part of the servants of the defendant railroad company in the operation of the train is not shown where it appears from the allegations of the petition that the presence of the deceased on the railroad track was not known to the defendant's servants in the operation of the train, although they may have known that it was the custom of pedestrians to walk along that part of the track, and the defendant railroad company through its servants in operating the train may have been negligent in failing to anticipate the presence of pedestrians on the track at that place, that the engineer operating the train did not keep a lookout ahead but, while the train was approaching the decedent, the engineer's attention was being attracted by the people at the mill along the side of the track and he was looking away from the train. Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (127 S.E. 274); Atlantic Coast Line R. Co. v. Fulford,33 Ga. App. 631 (127 S.E. 812); A. W. P. R. Co. v.Pressley, 44 Ga. App. 142 (160 S.E. 663); Hammontree v.Southern Railway Co., 45 Ga. App. 728 (165 S.E. 913);Dowdell v. Central of Ga. R. Co., 50 Ga. App. 712 (179 S.E. 414); Southern Railway v. Evans, 56 Ga. App. 177 (192 S.E. 505). The cases of Vaughn v. L. N. R. Co., 53 Ga. App. 135 (185 S.E. 145), and Goswick v. W. A. R. Co., 54 Ga. App. 164 (187 S.E. 205), are clearly distinguishable."

In a case involving the same principle, Southern Railway Co. v. Lomax, 67 Ga. App. 406 (20 S.E.2d 437), this court rendered an opinion to the same effect: "1. `Ordinarily the only duty owing by a railway company to a trespasser upon or about its property is not to wantonly or wilfully injure him after his presence has been discovered.' Hammontree v. Southern RailwayCo., 45 Ga. App. 728 (165 S.E. 913); Young v. SouthGeorgia Railway Co., 34 Ga. App. 537 (130 S.E. 542);Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S.E. 36, 59 L.R.A. 592). 2. `The mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and a time when it was their duty to anticipate the presence of trespassers, and thereafter to take such needful and proper measures for his protection as ordinary care might require, might amount to a lack of ordinary care on the part of the railway company, but would not, in and of itself, amount to wilful and wanton misconduct.' Hammontree v. Southern Railway Co., supra; Lowe v. Payne, 156 Ga. 312 (118 S.E. 924)." SeeCentral of Georgia Railway Co. v. Tapley, 145 Ga. 792 (89 S.E. 841).

The petition nowhere alleges that the servants operating the train ever saw the plaintiffs' truck. It is, in fact, drawn on the theory that the engineer did not see the truck because he was not keeping a proper lookout. We have been unable to find any authority of the Supreme Court or of this court which would authorize a recovery under such facts as are alleged in the instant case. The facts of this case distinguish it fromPollard v. Blackburn, 55 Ga. App. 548 (190 S.E. 621). In that case the adequacy of the crossing was involved, which at least contributed to other causes alleged which resulted in damage. In the instant case it is only alleged in this respect that the driver of the truck "lost control of said truck and ran into a ditch on the left and northerly side of said public road."

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