1. In case number 35098, the court did not err in overruling the general demurrers to counts one and two of the petition and the special demurrer treated in division 5 of the opinion. The court erred in denying the amended motion for new trial. The motion to dismiss the writ of error is denied.
2. In case number 35088, the petition alleged a good cause of action as against a general demurrer, and the court erred in sustaining the general demurrer and in dismissing the action.
G. G. Newsome sued Savannah & Atlanta Railway Company and Central of Georgia Railway Company for damages allegedly caused by the defendants' negligence. Count one of the petition sued for damages to the plaintiff's automobile, resulting from a collision between the automobile and a train of Savannah & Atlanta Railway Company. Count two sought damages for the loss to the plaintiff of his wife's services, the wife having been a passenger in the automobile at the time of the collision and having been injured therein. After amendment and the sustaining of certain special demurrers thereto, count one alleged: Savannah & Atlanta Railway Company operates a line of railroad through Warren County, Georgia; the said railroad line runs through the corporate limits of the Town of Camak in Warren County and traverses highway No. 80 at a grade which is called Warrenton Street in Camak and which leads from Camak to Warrenton, Georgia, in a north-south direction; said public street is a heavily traveled street and a great volume of traffic passes over the grade crossing daily and nightly; all of the traffic from Camak and from Cedar Rock and other points in that vicinity uses said highway in traveling to Warrenton; for many months prior to October 10, 1952, Savannah & Atlanta Railway Company maintained a railroad crossing sign on the west side of said street, about 5 feet from the western side thereof, and on the north side of the railroad track, so that it stood approximately 17 feet from the crossing, and to the right of a traveler on the highway who was proceeding from Camak towards Warrenton, as he approached said crossing, with the words in large letters thereon, "Railroad Crossing"; said sign was a warning to travelers of the approach to a railroad crossing; said sign was black and white, so that same could be seen in the daytime and in the nighttime, and at night, same could be seen by persons traveling towards Warrenton for a distance of 50 feet before they reached it, but on this particular night, because of the misty and foggy condition, if the sign had been standing, the plaintiff could have seen it 30 feet before he reached it; the railroad crossing is a dangerous one, particularly in the nighttime; the defendants did not maintain an electric bell at said crossing, nor any other sort of warning which a traveler on the highway could hear, to advise him that a train was standing on the crossing; as one travels from Camak towards Warrenton, and as he approaches said crossing, he is traveling upgrade, and in such a fashion that the lights of an automobile will be thrown under a train standing on said crossing, until the traveler is within approximately 20 feet of said train; on the night of October 10, 1952, at approximately 7:45 o'clock p. m., and after dark, the weather was cloudy and misty, making it impossible for a traveler on the highways to see more than 30 feet ahead of
him in the darkness; at said time the plaintiff was driving his automobile over the aforesaid street and highway from Camak towards Warrenton, in the misty and cloudy weather, and he approached said railroad crossing at a lawful rate of speed of approximately 20 miles per hour; the railroad crossing sign heretofore mentioned had been allowed by the defendants to fall over on its side, so that it lay on the ground, and was not standing so it could be seen as a warning to travelers along the highway and the approach of the crossing; the plaintiff did not know that said sign was down on that night and he specifically relied on its being erect; the plaintiff was watching for the railroad sign as he approached said crossing, and when he did not see the sign, he was lulled into the belief that he was a considerable distance away from the crossing not expecting to come to same until he had first reached said sign, and not knowing that it was down; after the plaintiff had passed the fallen sign, and not knowing he had passed same, he approached said railroad track, and at the time, there was a train standing on the tracks, being obscured in the cloudy and misty weather and being further obscured because the boxcars were a dull grey color, blending with the surrounding terrain and the embankments and road in such fashion as to present an optical illusion, and so as to make it appear that there was no obstruction in the path of the plaintiff at the crossing; under the conditions aforesaid, the plaintiff drove his automobile into said train, not observing same, and not being able to see it until he was within 20 feet thereof, and when it was too late to stop his car and prevent its running into the train; if the railroad crossing sign had been erect, the plaintiff could have seen it for 30 feet before he reached it, or 47 feet before he reached the crossing, which would have allowed him ample time to stop his automobile before reaching the crossing and the train thereon; but as the sign was down, the plaintiff ran past it while looking for it, and because of the conditions heretofore described, including the optical illusion and the weather conditions, he did not see the train until he was within 20 feet of it, and thereby crashed into it, and was unable to avoid so doing; the plaintiff's automobile was damaged in the collision, he was jarred and injured and his wife was injured, all as a result of the defendants' negligence, which negligence was the proximate cause of the collision; the defendants were negligent specifically as follows: in allowing the sign marked "Railroad Crossing" to fall down, having been imbedded insecurely and of such shallow depth as to allow same to fall, and thus lulling travelers on the highway into a sense of believing that they were not within 47 feet of the crossing.
Count two alleged substantially the same as count one, except that count two contained the following specifications of negligence: In knowing that said railroad crossing sign was essential and necessary to warn travelers of the approach to and distance from said railroad crossing, and knowing that it was down and had been for at least 48 hours; in allowing said crossing sign to remain down, and in continuing to operate trains over the crossing, particularly at night and in misty and foggy weather, and without doing anything to warn persons on the highway of the presence of trains on the crossing at night, and in doing nothing towards securing the prompt erection of the crossing sign; in knowing of the dangerous and hazardous condition created by parking its train on the crossing in the nighttime, under the circumstances aforesaid, and in seeing the approach of the plaintiff's automobile with its lights burning, and yet, doing nothing to warn him of the presence of said train parked on the crossing in the nighttime in an unlighted condition; in creating the dangerous situation aforesaid, and thus lulling travelers on the highway into a false sense of security, in making them believe they were not within 47 feet of the crossing, when they were nearer to the extent that it was too late for them, and the plaintiff in particular, to stop before colliding with the train; in operating the train as alleged without anything about the train which would serve to give notice to the plaintiff of its presence.
The court overruled general demurrers to the two counts and certain special demurrers, to which judgment the defendant Savannah & Atlanta Railway Company excepted pendente lite. On the trial of the case the jury returned a general verdict for the plaintiff against Savannah & Atlanta Railway Company. The amended motion for a new trial of Savannah & Atlanta Railway Company was denied, and it excepts to this judgment and assigns error on its exceptions pendente lite.
1. (a) Both counts of the petition alleged a good cause of action against Savannah & Atlanta Railway Company. There are circumstances where due care for the safety of others would require a railroad obstructing a crossing to place a guard, light, or some other warning at a proper point to give notice for the time that the crossing is obstructed. Mann v. Central of Georgia Ry. Co., 43 Ga. App. 708
, 711 (160 S. E. 131); Atlantic Coast Line R. Co. v. Marshall, 89 Ga. App. 740
, 743 (81 S. E. 2d 228). An illustration of such circumstances is a "misty and foggy morning." Gay v. Smith, 51 Ga. App. 615
, 616 (181 S. E. 129). Except in clear and indisputable cases, whether particular circumstances require such action on the part of the railroad is a question for a jury's determination. Central of Georgia Ry. Co. v. Mann, 48 Ga. App. 668
, 670 (7) (173 S. E. 180). A jury might also be authorized to find that the defendant was negligent in allowing the crossing sign to remain down. Southern Ry. Co. v. Riley, 57 Ga. App. 20
, 27 (3) (194 S. E. 422). The petition did not show that the plaintiff was guilty of such negligence as would preclude a recovery. The fact alone that he was familiar with the crossing does not show such negligence. Especially is this true in the instant case, where it was alleged that the plaintiff was relying on the crossing sign to warn him of the close proximity of the crossing and, upon not seeing it, believed he was farther from the crossing than he actually was. One is not always required to drive so that he may stop within the range of his headlights. McDowall Transport, Inc., v. Gault, 80 Ga. App. 445
, 447 (50 S. E. 2d 161). As to the condition of the crossing being such as would throw the driver's headlight beams under the boxcars, see Burnett v. L. & N. R. Co., 58 Ga. App. 64
(197 S. E. 663).
(b) The plaintiff in error argues on the general demurrer to the second count that the court alleged ownership of the railroad line in Georgia Railroad & Banking Company and that, before Savannah & Atlanta Railway could be held liable for the injuries complained of in relation to the sign and similar signaling equipment, the petition would have to show that Savannah & Atlanta Railway Company had some contract or agreement which gave it dominion and control over the tracks and enough dominion and control to repair the sign that was down. The second count as amended alleged that "the Savannah & Atlanta Railway Company at the time was using and controlling the aforesaid line of railroad by virtue of a lease. . ." This allegation was sufficient to maintain the action against Savannah & Atlanta Railway Company for the negligence alleged. Code 94-1102; Central R. & Bkg. Co. v. Gamble, 77 Ga. 584 (1a) (3 S. E. 287); Central Railroad v. Logan & Co., 77 Ga. 804, 807 (2 S. E. 465).
2. The plaintiff in error contends that the court erred in charging the following: "There is no fixed rule which the law requires you to follow in estimating the amount of damages for pain and suffering, except that it is left to the enlightened conscience of an impartial jury. What the law expects, and is expected of a jury, is that you will exercise a conscientious sense of duty, enlightened by the facts in the case as you derive them from the evidence. That is what is meant by the 'enlightened conscience of the jury', but there is another qualification; the statute says, the enlightened conscience of an impartial jury. Therefore, the jury must decide the matter impartially. When you consider that question, if you believe that the defendant is liable, then exercising the intelligent conscience of an impartial jury, you will fix the amount of money to which the plaintiff, in your opinion, is entitled to recover from the defendant." The charge was erroneous and harmful. A husband cannot recover damages for the pain and suffering of his wife. That action is in the wife. The charge was not to the effect that the jury could take into considerations the wife's pain and suffering as an element of her disability to perform services for the husband; it authorized a finding for damages to the plaintiff because of his wife's pain and suffering, which is contrary to law.
3. The amended motion complains of the court's charge on the wife's loss of capacity to perform services for the plaintiff. In the charge the court referred to the wife's "decreased earning capacity," her "labor" and her earnings. It is contended that such charge authorized the jury to find that the husband could recover for the wife's decreased capacity to earn wages and salary, which he could not do without it appearing that the wife had consented to the husband's right to her salary or wages. In his petition the plaintiff sought only the loss of his wife's services and the evidence was only as to that matter and did not contain any reference to wages and salary. Without going into the question as to whether the charge was error and harmful under the facts of this case, the charge was at least inappropriate and not a clear statement of the law, and on a retrial of the case the court should, in charge, clearly distinguish between a decrease in the capacity to perform services and a decrease in the capacity to earn salary and wages. See Martin v. Gurley, 74 Ga. App. 642, 644 (3) (40 S. E. 2d 787).
4. It is contended that the following charge was error: "The present worth of a given sum is arrived at by dividing a given sum by one dollar, plus the legal rate of interest, seven percent, for the given time." The plaintiff in error contends that the charge authorized the jury to find that the present worth of a sum due in the future is more than the sum to become due. We think that the charge is confusing, even though an identical charge was held to be harmless in Standard Oil Co. v. Reagan, 15 Ga. App. 571, 591 (5) (84 S. E. 69), and a similar charge was held not to be error in Williams v. McCranie, 27 Ga. App. 693, 694 (4) (109 S. E. 699). Clarity and propriety should require the court when charging the jury that they might follow the stated rule to charge the rule in such a manner that it will be applied correctly as stated in the above-cited cases. In Standard Oil Co. v. Reagan, supra, at page 592, the court gave the correct application of the rule as follows: "the gross amount should be divided by $1 plus 7 percent on $1 for the entire life expectancy of the deceased; or, in other words, that the gross value, which the jury might have found to be $30,640 (at $766 per annum for 40 years, had they fixed the expectancy at 40 years), should be divided by $1 principal, plus $2.80 interest on $1 at 7 percent for 40 years, or by a total of $3.80, which would have given a present cash value of only $8,063.15."
5. The plaintiff amended his petition by adding the following specification of negligence: "In operating said train as alleged in paragraph 15, as amended, without anything about the train which would serve to give notice to this plaintiff of the presence of same." Paragraph 15 as amended was as follows: "There was nothing about the train which would serve to give notice to this plaintiff of the presence of same." The defendant demurred to the amendment as follows: "because the same is too general and does not put this defendant on notice of any acts of negligence which they are alleged to be guilty of." The demurrer was overruled. The gist of the allegations is that the defendant did nothing to warn the public and the plaintiff of the presence of the train on the crossing. This is a definite, precise allegation sufficient to allow the defendant to prepare its defense. "Nothing" is the absolute "absence of anything." To sustain the allegation, the plaintiff must prove that "nothing" was done to warn of the train's presence. In so alleging the plaintiff assumed quite a burden. If it appears from the evidence that any one thing was done to warn of the train's presence, the allegation is not sustained. The court did not err in overruling the demurrer.
6. Case number 35088, Newsome v. Savannah & Atlanta Ry. Co., is an action by Mrs. G. G. Newsome, who was a passenger in her husband's automobile, for damages for personal injuries growing out of the collision. Her petition alleged substantially the same as did her husband's. The court sustained a general demurrer to the petition and dismissed the action. For the reasons stated in divisions 1 (a) and (b) of the opinion, the court erred in sustaining the general demurrer and in dismissing the action.
7. The defendant in error in case number 35098 moves for a dismissal of the writ of error on the ground that Central of Georgia Railway Company is an essential party and is not made a party in the bill of exceptions. Central of Georgia traversed the sheriff's entry of service and challenged the court's jurisdiction as to it. The court directed a verdict for Central of Georgia on the traverse, and the plaintiff is not excepting to that judgment. Such judgment let Central of Georgia out of the case, and the case stood as if it was never a party thereto. In view of these facts, Central of Georgia is not an essential party to this appeal and the motion to dismiss is denied. See Hines v. McLellan, 117 Ga. 845 (2) (45 S. E. 279); Adams v. Georgia Ry. & Elec. Co., 142 Ga. 497 (1b) (83 S. E. 131); Richter v. Macon Gas Co., 144 Ga. 650 (1) (87 S. E. 895).
In case number 35098, the court did not err in overruling the general demurrers to counts one and two of the petition and in overruling the special demurrer treated in division 5. The court erred in denying the amended motion for a new trial.
In case number 35088, the court erred in sustaining the general demurrer to the petition and in dismissing the action.
In case number 35098, the judgment overruling the general and special demurrers is affirmed. The judgment denying the amended motion for new trial is reversed. In case number 35088, the judgment is reversed. Quillian and Nichols, JJ., concur.