LUKE v. POWELL

D. B. Luke Jr. filed a suit in the superior court of Sumter County against L. R. Powell and Henry W. Anderson, as receivers of the Seaboard Air-Line Railway, in which he sought to recover for personal injuries and property damages sustained by him as the result of alleged negligence of the defendants, through their servants and employees, in the operation of a passenger-train. It is alleged in the petition, that the defendants' railroad tracks pass through the City of Plains, Georgia, and cross Bond Street in such city about 250 yards east of the defendants' depot, at right angles with such street; that the railroad tracks run east and west, and Bond Street north and south; that the paved highway leading westward from Americus through Plains parallels such railroad tracks on the north side thereof and about 20 feet therefrom for some 400 to 500 yards before reaching the depot in Plains; that this highway is known as North Main Street from the eastern city limits to the depot, and at the above crossing is about 15 or 20 feet north of the railroad tracks; that the railroad tracks as they approach the city from the east curve southward some 400 yards before reaching Bond Street crossing, and then curve back to a point immediately opposite a large two-story cotton ginnery located about 20 or 30 feet to the south of and facing the railroad tracks, such tracks being straight from this ginnery to the depot; that about half way between the ginnery and the crossing there is a large seed and storage building; that on January 5, 1938, at the time of the occurrence herein complained of, a school bus was stationed some 20 or 30 feet immediately east of this crossing and about half way between the seed house and the crossing; that south Main Street runs east and west in the City of Plains, immediately in front of and bordering the brick buildings that constitute the business portion of the city, for one block west of where it intersects Bond Street about 70 yards south of the Bond Street railroad crossing, and from its intersection to such crossing on the east side there are buildings that entirely obstruct the view of persons traveling eastward beyond Bond Street to the railroad crossing; that the paved highway from Americus above referred to crosses Bond Street a few feet north of this crossing and "in the triangle thus formed is located a filling-station in the northeast corner of the intersection of this highway with Bond Street at this point;" that heavy traffic constantly travels along Bond Street over this crossing, of which the defendants through their servants and employees had knowledge; that by reason of the curve southward of the railroad tracks as they approach the crossing the two-story cotton ginnery, the storage house, the school bus, and the buildings located along South Main Street as above stated, "obstructed entirely the view of a traveler approaching the City of Plains to said crossing," and the defendants through their servants and employees knew this, and knew that this condition existed at the time of the occurrence herein complained of.

It is further alleged, that on the date above stated the plaintiff was traveling in an automobile eastward on South Main Street, and was traveling in the usual way, observing every care and caution for his own safety, and when he reached Bond Street he turned his automobile to the left and proceeded up Bond Street to the railroad crossing; that by reason of the obstructions above stated the plaintiff neither saw nor could he have seen a train approaching the crossing from the east, that as he neared the crossing he heard "what he took to be an automobile or truck horn blowing;" that he looked in every direction as far as he could see, which was only a short distance east and west of the crossing and north and south of Bond Street, "to ascertain, if he could, what the trouble of the vehicle was, that was giving the horn signal as he took it to be;" that the plaintiff neither knew of nor saw the train of the defendants approaching the crossing from the east; that at the crossing there are two lines of railroad tracks, one a sidetrack and the other a main-line track, and as the plaintiff approached the crossing he could not distinguish the main-line track from the side-line track, and did not know the difference; that not seeing any approaching train or hearing any bell ringing or whistle blowing the plaintiff proceeded over the crossing; that when the plaintiff had passed over the sidetrack which was between him and the main-line track, though he did not know this at the time, the plaintiff observed for the first time the passenger train of the defendants approaching the crossing from the east and within a very short distance thereof, the engine being at the time almost opposite the school bus stationed some 20 or 30 feet immediately east of the crossing; that when the plaintiff first had knowledge and observed the train approaching the crossing it was 20 or 25 feet therefrom and running at a "rapid speed" of about 25 or 30 miles an hour; that the plaintiff, at the time, was driving his automobile around 12 or 15 miles an hour; that the plaintiff saw that it was impossible, after the train came into view, for him to stop his automobile before it reached the main-line track, "and he could not tell which the main line of track was, whether he was on the main line of track or the side-line track, but realizing his danger he did his best to get his automobile across the tracks, and away from the tracks of the rapidly approaching train in order to avoid being struck by the same;" that the railroad crossing is located practically in the center of the business portion of Plains, where at all times, day and night, there is continuous and constant vehicular and pedestrian traffic over the crossing; that when the plaintiff heard what he took to be an automobile or school-bus horn blowing "he looked in every direction, being already on the alert approaching the railroad crossing;" that he looked down the highway from Americus to Plains, and up and down the railroad as far as he could see; that he could not see very far on account of the obstructions above referred to; that as he rolled up on the first railroad track, which he at the time thought was the main-line track and the track upon which the train was approaching, he "undertook to hurry across," but the main line of track was the next track north of it, and "he lacked a split second of getting off the track before the front part of defendants' engine struck the right rear part of his car, just as he was emerging off of the track, said train striking plaintiff's automobile and dragging it for a considerable distance up the track," wrecking the automobile and personally injuring the plaintiff.

The plaintiff further alleged, that he was entirely free from fault and was exercising every due care and caution for his own safety in approaching the crossing; that he was traveling at a reasonable rate of speed and was on the alert in approaching the crossing; that just before he reached the crossing "he heard what he thought was an automobile, school-bus, or truck-horn blowing, and he continued to look up and down the railroad track on the East side, but he could not see very far on account of the obstructions already alleged;" that "just as plaintiff drove his automobile upon the railroad crossing, he observed for the first time defendants' train; it was then within some 20 or 25 feet of the crossing, and running at a rapid rate of speed, being pulled by a gasoline engine and not a steam locomotive, and carrying two coaches;" that the defendants' train was "just emerging from behind the school bus so stationed, as aforesaid;" that "the plaintiff could not distinguish the main line of track from the side-line track, and being unable to stop his car before rolling up on them he undertook in the emergency as he thought was his safest plan to avoid a collision to speed up his car and get across;" that the plaintiff's injury and damage were caused by the failure of the defendants to render to the plaintiff on the occasion "the care and caution and legal duties that were due him under the laws of Georgia, and defendants were negligent in respect thereto in the following particulars, each and all of which contributed to, and constituted the proximate cause" of the collision and consequent injuries and damages flowing to the plaintiff therefrom; to wit:

(a) That the engineer operating the engine of the train failed to signal the approach of the train to the Bond Street crossing as required by statute (Code, § 94-506), in that he failed, when he reached a point some 400 yards from the crossing, to blow through the whistle of the engine, as a signal of approach of the train to the crossing, two long and two short blasts loudly and distinctly, at intervals of five seconds between each blast, as required by law. (b) That the engineer operating the engine pulling the train failed to keep and maintain, as he approached the crossing, a constant and vigilant lookout along the track ahead of the engine, and otherwise exercise due care in approaching the crossing, in order to avoid injuring any person or property on the crossing or upon the line of railway at any point within fifty feet thereof, as required by the law of this State, in view of the obstructions near the Bond Street crossing with reference to the view of any one approaching the railroad crossing along Bond Street, of which conditions the engineer had knowledge, and in view of the fact that it was impossible for the engineer, on account of such obstructions at the crossing, to see a traveler approaching the crossing from the south on Bond Street, and that if the engineer had "even slowed said train down the least bit, or even a split second, it would have been sufficient for plaintiff to have passed over said crossing in safety, and said train would not have struck said automobile, but on the contrary it is shown that said engineer was operating said train on said occasion at a negligent and reckless rate of speed." (c) The engineer was further negligent in that he operated the train in approaching this crossing at a dangerous and reckless rate of speed considered in the light of the conditions and obstructions at the crossing as above alleged, knowing that the crossing was constantly used by travelers and knowing that he was approaching the crossing at the rate of speed so that he could not stop the train in time to avoid doing injury to persons using the crossing at the rate of speed at which he was operating the engine at the time, and that the engineer, in the exercise of proper care and caution under the circumstances, should have slowed the speed of the train in approaching the crossing, and had he slowed its speed "the smallest fraction of a second" the collision and consequent injuries to the plaintiff and his automobile would not have occurred. (d) That the vision of travelers approaching this crossing from the south was entirely obstructed until they got within close proximity thereof, and under the law, the defendants, through their servants and employees, are bound to slow the train so as to avoid doing injury to persons or property upon the line of the railroad at the crossing or within fifty feet thereof, and the servants and employees in charge of the defendants' train failed to slow it at all on approaching this crossing, and if they had slowed it "any appreciable amount, even to the fraction of a second," the plaintiff would not have been injured and his automobile damaged. (e) Had the defendants had the engine pulling this train "equipped with a suitable horn or whistle, giving the force, blast and sound of that with which locomotive engines were equipped prior to the passage of the act of 1918, p. 212, and required by this act, that is, if the whistle had been of the same size and dimensions as required by this act, and had been blown at the blow post located 400 yards from the crossing, and having the carrying sound that the whistle of engines and locomotives were equipped with prior to this act of 1918, page 212, plaintiff could have heard same, recognized the same, and could have avoided the consequences of defendants' negligence." (f) The engine pulling this train of the defendants was not equipped with the whistle as "required by the act of 1918, page 212, or anything approaching the requirements of this act in carrying sound, and therefore, if said engineer blew the whistle that said engine was equipped with, it was so near like that of a school bus or automobile horn that it deceived plaintiff, and under these circumstances and knowing of these facts, defendants failed to slow said engine down which was negligence on their part and which negligence contributed to and constituted the proximate cause of the injuries complained of herein."

The defendants demurred on the grounds that the allegations of the petition were insufficient to authorize a recovery against them, and also that the allegations with reference to the cause of the collision showed that the plaintiff was negligent to the extent of bringing about the collision, and that the petition showed that without his negligence the collision would not have occurred. The defendants specially demurred to various paragraphs of the petition. The plaintiff filed an amendment to the petition, and alleged that "said street crossing was located in the incorporate limits of the City of Plains, and in the immediate business portion thereof as alleged, and said train on said occasion did not ring its bell in making its approach to said crossing, as required by statute, nor did not otherwise in any manner signal its approach to said crossing than as herein set forth." The judge sustained the demurrers and dismissed the action, and the plaintiff excepted.

STEPHENS, P. J.

This case is in this court as the result of the sustaining of a general demurrer to the petition as amended, and the consequent dismissal thereof. The plaintiff alleged in his original petition that he was injured when his automobile was struck by a train of the defendants at a public street crossing in the City of Plains, which collision of the train with his automobile resulted from the failure of the servants in charge of the defendants' engine to comply with the requirements of Code, § 94-506, as to blowing the whistle of the locomotive upon approaching a crossing, from the failure of the defendants to have the locomotive equipped with a proper whistle, as contemplated by the act of 1918, supra, and from the failure of the engineer of the train to keep a proper and vigilant lookout as the train approached the crossing, and because he operated the train at a dangerous and rapid speed, and failed to slow its speed on approaching the crossing. By amendment the plaintiff alleged that the crossing was located within the corporate limits of the City of Plains, and that the engineer of the train which struck his automobile did not toll the bell of the locomotive in approaching the crossing as required by statute, "nor did not otherwise in any manner signal its approach to said crossing than as herein set forth."

The plaintiff is not entitled to recover on the alleged acts of negligence relative to the failure of the engineer to blow the whistle of the locomotive as required by the Code, § 94-506, as the train approached the crossing, which was within the limits of an incorporated city, and relative to the defendants' failure to have such locomotive equipped with the proper whistle. The statutory requirement as to blowing the whistle upon approaching a crossing has no application to a crossing in an incorporated city, town, or village. Code, § 94-507; Elberton Eastern R. Co. v. Thornton, 32 Ga. App. 259 (3) ( 122 S.E. 795), and cit.; Chandler v. Pollard, 64 Ga. App. 122 ( 12 S.E.2d 190). It necessarily follows that the failure of the defendants to have the locomotive equipped with a whistle, as required by Ga. L. 1918, p. 212, was not actionable negligence on the part of the defendants with reference to the plaintiff. However, under the Code, § 94-507, the engineer of a locomotive is required to maintain a vigilant lookout ahead as his train approaches a crossing in a municipality, and to exercise ordinary care to avoid injury to persons and property at or on a public crossing. The petition alleges a failure so to do on the part of the defendants' engineer, and alleges that had such engineer maintained a constant and vigilant lookout and exercised the proper care as the train approached this crossing, that is, had the train been safely and properly operated and not been operated at the speed of 25 to 30 miles an hour as it approached the crossing, the collision would not have occurred. By the amendment the plaintiff charges that the engineer in charge of the train did not toll the bell of the locomotive as the train approached this crossing, which was within the incorporate limits of a municipality, in violation of the requirements of the Code, § 94-507. The failure of the engineer so to do, where it appears from the allegations of the petition that there was a causal connection between such failure and the collision at the crossing, was actionable negligence on the part of the engineer.

Whether or not the engineer maintained such lookout and exercised the degree of care imposed by law in approaching this crossing, which under the allegations of the petition was known to be constantly used by the public, and which, on account of certain buildings and obstructions near the railroad tracks and of a curve in the tracks, was concealed from the view of the engineer until he was in close proximity thereto, and where the view of a traveler along the highway of an approaching train was likewise obstructed, of which the petition charges that the engineer had knowledge, it can not be held as a matter of law that the engineer exercised the degree of care imposed on him by law in approaching the crossing, or that his failure to do so did not constitute the proximate cause of the collision. It therefore appears that the petition as amended sufficiently alleges actionable negligence on the part of the servants of the defendants, and sets out a cause of action entitling the plaintiff to recover, unless it appears under the allegations thereof that the plaintiff's injury was caused by his own negligence or failure to exercise due care to avoid the consequences of the defendants' negligence, after he was aware of the defendants' negligence, or in the exercise of reasonable diligence should have apprehended the existence thereof. See Pollard v. Hagan, 60 Ga. App. 581 ( 4 S.E.2d 477); see also W. A. R. Co. v. Mathis, 63 Ga. App. 172 ( 10 S.E.2d, 457).

In an action for injury resulting from negligence the plaintiff is not obliged to allege facts showing that he exercised due care for his own safety, or that the injury was not the result of his own negligence. However, in the petition as amended the plaintiff alleges in substance that he was on the alert, and exercised due care as he approached the crossing, in that he approached the crossing at a speed of around 12 or 15 miles per hour and looked up and down the railroad tracks and did not see a train approaching; that because of certain obstructions near the tracks he could see only a short distance towards the east along these tracks, and that when he got upon the crossing and was upon the main-line track he saw for the first time the train approaching from the east within 25 feet of him and running at a rapid speed of about 25 or 30 miles an hour. It is also alleged that just before the plaintiff reached the crossing he heard what he thought to be an automobile or school bus or truck blowing, and continued to look up and down the railroad tracks, but could not see very far on account of obstructions; and that just as he drove the automobile upon the crossing he observed the train as alleged, which was being pulled by a gasoline engine, and that he undertook, in the emergency, what he thought was his safest plan to avoid a collision, an increase in the speed of his automobile in order to get across the crossing, and that had the engineer exercised due care in approaching the crossing, and had he not approached such crossing at the rapid speed alleged, the plaintiff would have had ample time to get off the crossing before being struck. In an action against a railroad company for injuries received by a person lawfully upon a railroad crossing, the question of what such person must or must not do in order to free himself of guilt of lack of ordinary care constituting the proximate cause of his injury is one for the jury. Southern Ry. Co. v. Slaton, 41 Ga. App. 759, 761 ( 154 S.E. 718); Pollard v. Cartwright, 60 Ga. App. 630 ( 4 S.E.2d, 693). The duty to exercise ordinary care to avoid the consequences of another's negligence does not arise until such negligence becomes apparent, or an ordinary person could apprehend its existence, and unless it appears as a matter of law that the plaintiff was negligent this is a jury question.

It does not appear as a matter of law, from the petition as amended, that the plaintiff was injured as a result of his own negligence, or failure to exercise due care to avoid the consequences of the defendants' negligence after he became aware thereof. Where one is confronted with a sudden emergency without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as would be required of him if he had time for deliberation. However, the arising of such emergency does not relieve one of the obligation to exercise ordinary care, but it is merely one of the circumstances which are proper for consideration in determining whether ordinary care has been exercised. He is to be dealt with in the light of his surroundings at that time, and he is not necessarily negligent even though his judgment was wrongly exercised. See Napier v. DuBose, 45 Ga. App. 661 (4) ( 165 S.E. 773). Under the facts as alleged it is a question for the jury to determine whether such an emergency did exist, and if it did, whether or not the plaintiff used ordinary care in increasing the speed of his automobile in order to get off the crossing. See Central of Ga. Ry. Co. v. Barnes, 46 Ga. App. 158 ( 167 S.E. 217), where the facts were similar to the case under consideration, and in which the court held that the trial judge properly overruled the demurrer to the petition; also Brown v. Savannah Electric Power Co., 46 Ga. App. 393 (3) ( 167 S.E. 773). The attempt of the plaintiff, who was not aware of the approach of the train, to cross the railroad tracks at this crossing can not, as a matter of law, be said to constitute such negligence on his part as would bar a recovery. Reed v. Southern Ry. Co., 37 Ga. App. 550 ( 140 S.E. 921).

Applying the above principles, the court erred in sustaining the general demurrer and dismissing the petition. The special demurrers were without merit. The petition was very voluminous, went into details, and alleged all the facts upon which these conclusions were based.

Judgment reversed. Sutton and Felton, JJ., concur.