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Damages; from Thomasville City Court-- Judge Craigmiles. June 5, 1951.
The petition by a widow against a railroad company seeking damages for the tortious death of her husband in a collision by a truck driven by her husband with an engine of the railroad partially blocking a public crossing in a municipality when her husband saw the engine and slowed the truck and attempted to go around it, is subject to general demurrer because it shows that her husband could have avoided whatever negligence the railroad was guilty of by the exercise of ordinary care.
Mrs. Emma Z. Dolan sued Atlantic Coast Line Railroad Company for the death of her husband allegedly due to the negligent operation of one of defendant's trains. Count two of the petition alleged substantially: that U. S. Route 19 intersects with the main-line tracks of defendant at a certain point within the City of Thomasville; that U. S. 19 is a well traveled route; that on the morning of April 21, 1950, at about 3:15 a.m., plaintiff's deceased husband, accompanied by a companion, was driving a pick-up truck, which was about 6 1/2 feet wide, along U.S. 19 on a trip from Thomasville to Tallahassee, Florida; that in order to make such trip, it was necessary for deceased to drive across the above-mentioned intersection of U. S. 19 and defendant's main-line tracks; that it was extremely dark at the above-mentioned time; that as the truck approached said public crossing deceased discovered that a certain yard or switch engine of defendant being then and there operated by defendant's engineer, was parked upon said crossing, with the front end or boiler of the locomotive headed north toward the switchyards of defendant; that upon discovering this parked engine on the crossing, deceased slowed down the speed of the truck and continued on toward the crossing; that the width of the highway at the crossing is 18 feet; that deceased was driving on the extreme right-hand side of the pavement as he traveled toward the crossing; that deceased had the right to assume, and did assume, that the locomotive had been so parked upon the public crossing as to leave open the right-hand driveway in order that the said truck might have proceeded over said crossing in front of the locomotive without danger; that said switch engine was old, weather-beaten and about the color of the darkness of the night; that on approaching the crossing, after discovering the locomotive, deceased did not know, and in the exercise of ordinary care could not have known, that the engine had been so parked upon the crossing so that the front end of the engine or the locomotive boiler, was extending over and beyond the center of the highway and into the right-hand driveway along the highway, and was so parked as to cause the deceased to believe that a sufficiency of the driveway was left open to enable the truck to pass the engine and cross the highway in front of the engine in safety; that, unknown to deceased, there was attached to the front end of the engine a heavy step or platform, extending entirely across the front of the engine, which step or platform was for the purpose of enabling the switch crew on the engine to ride to and from all points where it might be necessary to couple cars, and was so constructed that it was bolted by heavy steel bolts to a heavy steel beam extending across the front of the engine, upon which the end or head of the boiler of the engine rested, the platform being of sufficient width to enable switchmen to stand thereon while said locomotive was in motion and was so constructed that it was approximately 10 inches above the rails; that deceased had no notice or knowledge, or reason to suspect, that this step or platform was attached to the engine and extended out in front of the end of the boiler of the engine a distance of approximately 3 feet; that there was no light or signal device on said platform to notify the occupants of said truck that it was so attached and was extending out into the driveway as aforesaid; that the step or platforms was so situated as not to be discernible by deceased on account of the darkness and the shadows thrown by the engine itself, until he had approached in such proximity to the obstruction that deceased, without negligence on his part, was caught in a sudden emergency; that upon discovering the platform, deceased immediately applied the brakes to the truck in an effort to stop it in time to
avoid striking the platform, which was impossible, and as a result of which the bumpers on the truck and the points of the springs underneath the fore end of the truck struck and plowed underneath the platform, which impact caused the front of the truck in which deceased was sitting to be hurled underneath the big steel beam across the front of the engine, with the result that deceased was instantly killed; that the engineer was negligent in parking the engine on the public crossing for the reason that the parking thereof was unnecessary; that there was no car of any description coupled to said locomotive, and that the overall length of the engine, with tender attached, was approximately 60 feet; that the engineer, in clearing the side-track on which he had been performing switching operations and in entering upon the said main line, could have stopped the engine in order to enable the switchman to back onto said engine, without entering on this crossing at all, which, in the exercise of ordinary care, he should have done, and his failure to do so was negligence, which negligence entered into, contributed to and was a part of the direct and proximate cause of deceased's death; that the engine stood upon the crossing for approximately one minute prior to the collision between it and the truck; that during this time the engineer was sitting on the right-hand side of the locomotive in the cab and had a full view of the highway from the crossing up toward and into the City of Thomasville, along which the truck was approaching, the highway being perfectly level and there being no obstructions to prevent the engineer from seeing the truck approaching the crossing; that the engineer saw the truck approaching the crossing and had every reason to know and to believe that the truck would endeavor to pass in front of the engine, or, in the exercise of ordinary care for the safety of the occupants of the truck, should have known thereof; that the engineer caused no flagman to be posted or any sort of signal to be given to the approaching truck and that this negligent failure on the part of the engineer, it being his duty to do so, evidenced an absolute disregard of the life and safety of the occupants of the truck; that when deceased was approaching the crossing, the engineer knew, or in the exercise of ordinary care could have discovered, that there was steam up on said locomotive, and the engineer with full knowledge of the fact that the crossing was being blocked in front of the engine, could have, within the time that he stood stationary on the crossing, backed the engine a short distance of 3 or 4 or 5 feet and by so doing would have left this populous public crossing open; that failure to do so, with full knowledge of the danger to the occupants of the truck, was negligence on his part; that the engineer was negligent for the following reasons, and that his combined acts of negligence caused, contributed to, and were the direct and proximate cause of the death of deceased, to wit: (a) in parking the engine on the public crossing; (b) in parking the engine on the crossing in such manner as to block a portion of the driveway in front of the engine; (c) in failing to post a watchman to notify all motorists who might be driving toward and over the crossing that the crossing was partially blocked by the engine and its appurtenances; (d) in failing to have a light or some other signal on the platform to notify the occupant of the truck, and all other persons, that this projection was partially blocking the crossing; (e) in failing to give to the approaching motorists any signal or notice whatever that the crossing was partially blocked; (f) in, after discovering the approach of the truck, failing to back the engine to clear the crossing in front of the engine so as to enable the occupant of the truck to pass by in safety; that because of such negligence plaintiff was damaged in described particulars. Defendant's demurrer to count one of the petition was sustained and its demurrer to count two was overruled and defendant excepts to the overruling of such demurrer.
Assuming for the sake of argument only, but not deciding, that the defendant was negligent in one or more of the particulars alleged, it clearly appears from the allegations of the petition that the driver of the truck could have avoided the consequences of whatever alleged negligence there was on the part of the defendant by the exercise of ordinary care. Code 105-603. Under the allegations of the petition, the driver of the truck saw that the crossing was partially blocked so that any negligence by the railroad in blocking the crossing or failing to give warning of its being blocked became a circumstance requiring the driver of the truck to exercise ordinary care to avoid injury to himself and was not a proximate cause of the collision if the driver could have avoided injury by the exercise of ordinary care. The allegations of the petition do not show that the deceased came upon the engine suddenly without seeing it and that he attempted to extricate himself from an emergency not of his own making by going around the engine. The allegations show that the deceased saw the engine partially blocking the crossing and that instead of stopping or endeavoring to stop, he merely reduced the speed of his truck, and then deliberately attempted to go around the engine. In the absence of an allegation to the contrary, it will be assumed that the truck was properly equipped with headlights shining 500 feet ahead and since there is no reason alleged why the driver of the truck could not have seen the platform in front of the engine, the conclusion is irresistible that the driver of the truck could have avoided injury to himself by the exercise of ordinary care. With a passive, static situation before him, and with full notice thereof, the deceased deliberately chose a course of uncertainty and danger. He had the last and clearest of chances to avoid injury by the exercise of ordinary care, and his failure to do so precludes a recovery by his widow in this case. In such a case the law regards the negligence of the driver as the sole proximate cause of the injuries. We have found no similar case in Georgia or elsewhere, but the principles enunciated are so well known as not to require citations. The cases most strongly relied on by defendant in error are so clearly distinguishable that no discussion of them is required. The cases are: Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332 (136 S. E. 533), and Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708 (160 S. E. 131). The court erred in overruling the general demurrer to count two of the petition.
Titus & Altman, contra.
S. Spencer Bennet, Thomas K. Vann Jr., Alexander, Vann & Lilly, for plaintiffs in error.
Saturday May 23 05:13 EDT

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