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GEORGE A. FULLER CONSTRUCTION CO. v. ELLIOTT et al.; and vice versa.
CENTRAL OF GEORGIA RAILWAY CO. v. ELLIOTT et al.; and vice versa.
SOUTHERN RAILWAY CO. v. ELLIOTT et al.; and vice versa.
35606.
35627.
35611.
35628.
35624.
35629.
Action for damages. Before Judge Hicks. Floyd Superior Court. December 30, 1954.
NICHOLS, J.
1. The renewed special demurrers of the defendant railroads were without merit.
2. The petition as amended set forth a cause of action against the defendant railroads for the death of the plaintiff's husband, which was alleged to have resulted from his attempt to rescue persons and save property.
3. The petition as amended did not show that any duty devolved upon the defendant construction company to properly affix the brakes or scotch the wheels of the cars which became loose on the track of one of the defendant railroads, and which prompted the rescue effort of the deceased husband of the plaintiff.
4. The answers of the defendants, properly construed, were addressed to the petition as amended and merely went in denial of any liability on the part of the defendants, and were not subject to the objections in the grounds of the plaintiff's special demurrers.
Mrs. Ben H. Elliott filed in Floyd Superior Court, against Central of Georgia Railway Company, Southern Railway Company, and George A. Fuller Construction Company, a petition which as amended alleged substantially the following: Petitioner is the widow of Ben H. Elliott, deceased, and at the time of Elliott's death on April 30, 1953, he left surviving him three minor children. The deceased was a trained engineer and experienced businessman, engaged in the development of houses and buildings. He was a strong and able-bodied man, earning $17,500 per year, and his earnings had been increasing from year to year, and would continue to increase in the future, to at least $25,000 per year. He was 37 years of age, and had an expectancy of life of 29.64 years. Petitioner is entitled to recover for the full value of the life of her husband in the gross sum of $741,000, which at the present cash value would be $278,100. The defendant George A. Fuller Construction Company was a general contractor engaged in building a large industrial plant for General Electric Company, located just west of the City of Rome, Georgia. The defendant Southern Railway Company constructed, maintained, and used for the operation of its trains and freight cars a spur track from its main line, in a northerly direction to the plant site of General Electric Company. The spur track of Southern Railway Company was so constructed that it intersected at right angles the main line of the defendant Central of Georgia Railway Company at a point approximately 100 feet east of Redmond Circle Road, and 400 feet south of a wire fence surrounding the location of General Electric Company's plant. The spur track was constructed and maintained so that the low point of the grade was 100 feet north of Central of Georgia Railway Company's track, and from the low point northerly toward the plant site there was a rise of 1.7 feet in 200 feet, and from the low point southerly, crossing Central of Georgia Railway Company's tracks, the rise was two-tenths of one foot in 200 feet. The defendant Central of Georgia Railway Company had, prior to and since the time of the injury, used and maintained its track or railroad for the purpose of running its engines and trains over its main line from Griffin, Georgia, to Chattanooga, Tennessee. The main line of Central of Georgia Railway Company south of the intersection is straight, and the crossing is plainly visible for a distance in excess of 1,000 feet. The engineer on a train on the track of Central of Georgia Railway Company, in approaching the intersection and going in a westerly direction, could not, on account of the growing of trees and the location of houses on the south side of its main line, see freight cars or trains approaching the crossing from the south and on the spur track of Southern Railway Company until the train was within approximately 100 feet of the intersection. On April 29, 1953, at approximately 6:30 p.m., there were three gondola-type freight cars on the spur track of Southern Railway Company inside the property of General Electric Company, and about 600 feet north of the intersection of the spur track with the main line of Central of Georgia. These cars had been placed there by Southern Railway Company by and through its agents and employees, whose names are unknown to the petitioner, but well known to Southern Railway Company and George A. Fuller Construction Company. At the time, the industrial plant of General Electric Company was in the process of construction by George A. Fuller Construction Company, and
the freight cars contained, or had contained, certain materials used in the construction thereof by the defendant construction company. Through the combined and concurrent negligence of the employees of Southern Railway Company and the employees of George A. Fuller Construction Company, the brakes on the freight cars were not properly set, and no other means were taken of braking or preventing the cars from rolling down the spur track towards Central of Georgia Railway Company's main line, should they become loose. The defendant Southern Railway Company in the building; construction, and maintenance of its spur line, failed to provide the spur track with a derailer, so that, should its car or cars become loose, the same would be derailed and prevented from rolling and crossing the main line of Central of Georgia Railway Company and obstructing the same. Two of the freight cars so placed upon the spur track became loose and started rolling down the grade towards the main line of Central of Georgia Railway Company. They crossed the low point in the grade 100 feet north of the track of Central of Georgia Railway Company, and built up such speed that they continued along the gradual rise thereof to the main line of Central of Georgia Railway Company for a distance of approximately 400 feet, then began rolling back northerly towards the main line of the Central of Georgia, moving at a speed of approximately 4 miles an hour. Petitioner was riding along the Redmond Circle Road in an automobile together with her husband and their three children. Her husband saw the runaway freight cars and, anticipating that there would be a train approaching the intersection of the main line of Central of Georgia Railway Company, and that the cars would come to rest and stop on the intersection, and in an effort to save the lives of persons operating the train of Central of Georgia Railway Company, and others thereon, and to prevent and avoid a collision between the train and the cars, he jumped from his automobile, dashed to the runaway freight cars, and in an attempt to stop the cars from rolling across the intersection into the path of the approaching train, threw rocks and sticks under the wheels of the freight cars, but was unable to stop them. The engine and train were on the track of Central of Georgia Railway Company approaching the intersection, going in a westerly direction at a rate of speed of approximately 20 miles per hour. As the train approached the crossing, its whistle was sounded, and petitioner's husband ran along the spur track of Southern Railway Company to its intersection with the track of Central of Georgia Railway Company and stood in the center of the track signaling with his hands to the approaching train in an effort to stop it and to avoid a collision between the train and the runaway cars. The engineer of the train of Central of Georgia Railway Company applied the brakes and the train began to slow down, but when it had reached a point approximately 50 feet from the intersection, its speed was increased. The freight cars on the spur track crossed the track of Central of Georgia Railway Company, one coming to a stop just north of the crossing, leaving a second freight car across the intersection of the tracks, which was struck by the train of Central of Georgia Railway Company, and knocked over and upon petitioner's husband, who was then standing approximately six or eight feet southwest from the southwest corner of the intersection. After striking the freight car, the train continued some 200 feet beyond the intersection before stopping, practically demolishing one of the freight cars, and turning it over and onto petitioner's husband, crushing the lower part of his body and causing such injuries that he died within a few hours. There was no flagman or modern interlocking signal device at the crossing.
The defendant Southern Railway Company was guilty of negligence: (a) In constructing the spur line across the main line of Central of Georgia Railway Company in such a manner that the low point of the grade was such that, if two or more freight cars were improperly braked and became loose, when placed either to the north or south of the intersection, they would come to rest across the main line of Central of Georgia. (b) In constructing, maintaining, and operating its trains and freight cars on the spur line without a derailer, or other automatic device, to prevent cars standing and placed on the spur line, and becoming loose, from crossing or coming to rest at the intersection of the spur track with the main line of Central of Georgia Railway Company. (c) In failing to properly brake and scotch the cars, and to prevent the same from coming loose and rolling down said grade across and upon the main line of Central of Georgia Railway Company. (d) In placing upon the grade the cars, without having adequate brakes or taking other necessary steps to prevent the cars from coming loose and rolling down the grade across the main-line tracks. (e) In not anticipating that freight cars so placed upon the spur line might become loose and roll down and upon the intersection with Central of Georgia Railway Company. (f) In failing to anticipate that a train being operated upon the main line of the defendant Central of Georgia Railway Company in a westerly direction, could not see a train or cars upon the spur line of the defendant Southern Railway Company until approximately within 100 feet of the intersection, and not taking such steps as might be necessary to prevent any such cars from rolling across the intersection.
The defendant George A. Fuller Construction Company was negligent, in that: (a) It permitted the freight cars to become loose and to roll down the grade and cross upon the intersection with the main line of Central of Georgia Railway Company. (b) It did not take the necessary and adequate steps to see that the freight cars were properly braked and scotched to prevent them from becoming loose and rolling down the grade and across the main line of Central of Georgia Railway Company. (c) In not braking or adequately scotching the freight cars so that, if same became loose, they would not roll down the grade across and upon the intersection.
The defendant Central of Georgia Railway Company was guilty of negligence per se, in that: (a) At the time herein complained of its train was violating the provisions of Code 94-510 by failing to come to a full stop within 50 feet of the intersection of the spur line of Southern Railway Company with the main line of Central of Georgia Railway Company and thus avoiding the collision and the death of petitioner's husband. (b) The defendant Central of Georgia Railway Company was negligent in failing to anticipate that there might be freight cars or trains upon the spur line of Southern Railway Company and in not having the train in such control that it might be stopped, upon the same becoming visible or known to the engineer operating the train of Central of Georgia Railway Company. (c) (Stricken on demurrer.) (d) In approaching the intersection where cars or trains approaching from the south on the tracks of Southern Railway Company and going in a northerly direction, could not be seen until within approximately 100 feet of the intersection.
(e) The engineer in charge of the train failed to keep a lookout ahead in the direction in which the same was being driven and operated, so that he might stop the train in time to avoid the collision. (f) In failing to stop the train and avoid the collision, after seeing petitioner's husband upon the intersection signaling and trying to stop the train of Central of Georgia Railway Company. The death of petitioner's husband was caused by the concurrent negligence of the defendants, and their negligence was the sole and proximate cause thereof.
The prayers were that process issue, and that petitioner recover of defendants $278,100.
To the petition as amended each of the defendants interposed separate general grounds of demurrer, and Central of Georgia Railway Company and Southern Railway Company each interposed separate special demurrers. Each of the defendants also filed separate answers.
Special demurrers were interposed by the petitioner to the defendants' answers.
The trial court overruled the petitioner's special demurrers to the respective answers of the defendants, and overruled the defendants' general demurrers to the petition as amended. Certain grounds of the defendants' special demurrers to the petition as amended were overruled and other special grounds were sustained.
Each of the defendants filed a main bill of exceptions assigning error upon the judgments insofar as the above rulings on demurrer were adverse to them. The petitioner filed three cross-bills of exceptions assigning error on the respective judgments overruling her special grounds of demurrer to the respective answers of the defendants.
1. The allegations of the petition as amended, to the effect that there was no flagman at the crossing, were not subject to the special demurrers of the defendants Central of Georgia Railway Company and Southern Railway Company in cases Nos. 35611 and 35624, on the ground that the allegations were immaterial and irrelevant, for the reason that whether a flagman was at the crossing had no causal connection with the death of the plaintiff's husband, since it appears from the petition that a flagman, if present at the crossing, could have done no more than the plaintiff's husband did.
The petition as amended contained allegations to the effect that the defendant Southern Railway Company was guilty of negligence: (1) In constructing the spur track across the main line of Central of Georgia Railway Company in such a manner that the low point of the grade was such that, if two or more freight cars were improperly braked and became loose, when placed either to the north or south of the intersection, they would come to rest across the main line of Central of Georgia Railway Company.
(2) In maintaining and operating its trains and freight cars on the spur track without a derailer, or other automatic device, to prevent cars standing and placed on the spur track, in the event they became loose, from crossing or coming to rest at the intersection of the spur track with the main line of Central of Georgia Railway Company. (3) In not anticipating that freight cars so placed upon the spur line might become loose and roll down and upon the intersection of the spur track with the main line of Central of Georgia Railway Company. (4) In failing to anticipate that an engineer operating a train in a westerly direction upon the main line of Central of Georgia Railway Company could not see a train or cars upon the spur track of Southern Railway Company until within approximately 100 feet of the intersection, and in not taking proper steps to prevent any such cars from rolling upon and being across the intersection. The above allegations of the petition as amended were not subject to the special demurrer of Southern Railway Company in case No. 35624, on the ground that they failed to set forth any violation of any law by this defendant or the violation of any duty imposed upon it or owed by it to the plaintiff's husband.
2. In Louisville & Nashville R. Co. v. Cline, 136 Ga. 863 (72 S. E. 405), the petition of a father to recover damages for the killing of his twelve-year-old child by a locomotive and train while she was attempting to rescue a six-year-old companion, who had fallen upon the track, was held to set forth a cause of action as against a general demurrer. It was said in the opinion: "If Lillie May Cline, moved by an impulse which was perfectly natural, sprang upon the track in an attempt to save a child younger than herself, who was prone and helpless in front of an approaching locomotive, and was struck and killed by the locomotive while thus endeavoring to rescue her companion, the question as to whether or not the negligence of the employees of the company, if the jury should find that they were negligent under the attendant facts and circumstances, was the proximate cause of the death of the little girl, would be for decision by the jury."
In Blanchard v. Reliable Transfer Co., 71 Ga. App. 843 (32 S. E. 2d 420), this court said: "In cases where one's negligence causes injury or danger to another the negligence which causes the injury or danger is negligence as to the rescuer, and efforts to rescue will not be considered negligent if they are not rash or wanton. Whether the rescuer acts rashly or wantonly, except in plain and indisputable cases, is a question for the jury. 'Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer . . . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had . . . The law does not discriminate between the rescuer oblivious of peril and the one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion.' Wagner v. International Ry. Co., 232 N. Y. 176 (133 N. E. 437, 19 A. L. R. 1, and annotations)."
The petition as amended set forth a cause of action against the defendants Southern Railway Company and Central of Georgia Railway Company in cases Nos. 35611 and 35624, for damages for the killing of the plaintiff's husband, which was alleged to have resulted from his attempt to rescue persons and save property by preventing a collision of Southern Railway Company's runaway freight cars with the train of Central of Georgia Railway Company, which collision was alleged to have resulted from the joint negligence of the defendant railroads. See also Rushton v. Howle, 79 Ga. App. 360 (53 S. E. 2d 768).
3. While it was alleged in the petition as amended that the defendant George A. Fuller Construction Company was negligent in not braking or adequately scotching the freight cars so that, if they became loose, they would not roll down the grade across and upon the intersection, still, the duty to properly affix the brakes or scotch the wheels to prevent the cars from getting loose was upon Southern Railway Company, and the petition as amended does not show that any duty devolved upon George A. Fuller Construction Company in this respect. It follows that the trial court in case No. 35606 erred in overruling the general demurrers of George A. Fuller Construction Company. Peggy Ann of Georgia, Inc. v. Scoggins, 86 Ga. App. 109 (71 S. E. 2d 89).
4. The averments in the answer of George A. Fuller Construction Company to the effect that the death of the plaintiff's husband was caused solely by his own negligence, were not subject to special demurrer in case No. 35627, on the ground that the averments were conclusions of the pleader.
The answer of Central of Georgia Railway Company contained averments to the effect: (1) That its engineer applied the emergency brakes as soon as its crew members could see the runaway cars approaching the crossing and the plaintiff's husband signaling. (2) The plaintiff's husband acted rashly and wantonly, and his attempt to prevent the collision was not made necessary by any negligence on the part of the defendant. (3) He was doing acts which he voluntarily undertook without sufficient legal reason or excuse. (4) He voluntarily and knowingly assumed the risk. (5) His death was solely and proximately caused by his own failure to exercise ordinary care for his own safety. (6) His negligence was equal to or greater than any alleged negligence on the part of this defendant. The foregoing averments in the answer of Central of Georgia Railway Company in case No. 35628, were not subject to special demurrer as being too indefinite, vague, and uncertain, or upon the ground that the averments were mere conclusions of the pleader.
The averments in the answer of Southern Railway Company to the effect that the injuries of the plaintiff's husband were solely and proximately caused either by his own failure to exercise ordinary care for his own safety or by the negligent acts of the other two named defendants, were not subject to special demurrer, in case No. 35629, on the ground that the averments were mere conclusions of the pleader.
The answers of the three defendants, properly construed, were addressed to the petition as amended, and merely went in denial of any liability on the part of the respective defendants and contended in effect that the death of the plaintiff's husband was brought about by his failure to use ordinary care for his own safety. Accordingly, the trial court did not err in overruling the plaintiff's demurrers to the respective answers of the defendants setting up such defenses, as were complained of in the three cross-bills of exceptions.
FELTON, C. J., dissenting in part. I concur in the judgment in case No. 35606, and in the judgments on the main and cross-bills in cases Nos. 35611 and 35628. I dissent from the judgment on the main bill in case No. 35624. Assuming for the sake of argument only that the petition alleges acts of negligence against the defendants George A. Fuller Construction Company and Southern Railway Company, such acts of negligence are too remote to be found to have been a proximate cause of the injuries complained of. The alleged negligence of Central of Georgia Railway Company was the sole proximate cause of the injuries. This conclusion is based on the well-known and much-cited principle of law that, under such facts as are alleged in this case, Fuller Construction Company and Southern Railway Company cannot be held liable because their alleged negligence was not the sole occasion of the injury, because it did not put in operation other causal forces such as were the direct, natural, and probable consequences of the original act, and because the negligence of Central of Georgia Railway Company could not have been reasonably anticipated or foreseen by Fuller Construction Company or Southern Railway Company. Peggy Ann of Georgia v. Scoggins, 86 Ga. App. 109 (71 S. E. 2d 89), and citations. I think it is conclusively shown by the allegations of the petition that, if the engineer of the Central of Georgia train had complied with the requirements of Code 94-510 and had come to a full stop within 50 feet of the intersection of the spur line of Southern Railway Company with the main line of Central of Georgia, whatever negligence of which the other two defendants had been guilty could have been discovered and avoided. I do not believe that the other two defendants were chargeable with anticipating the violation of the Code section by Central of Georgia Railway Company. I think the Code section was intended to protect all who were legally and rightfully in the orbit of danger from a collision of two trains at a railroad intersection such as we have in this case, and under the circumstances I think the deceased had a right to be where he was and that the plaintiff is not barred because the deceased failed to anticipate the negligence of Central of Georgia Railway Company and to remove himself from what turned out to be a place of gravest danger.
Wright, Rogers, Magruder & Hoyt, Wade C. Hoyt, Jr., for Southern Railway Company.
Matthews, Maddox, Walton & Smith, John W. Maddox, for Central of Georgia Railway Company.
Bryan, Carter, Ansley & Smith, Tom Willingham, W. Colquitt Carter, for George A. Fuller Construction Company.
Maddox & Maddox, James Maddox, for Mrs. Ben H. Elliott.
DECIDED JUNE 2, 1955 -- REHEARING DENIED JULY 14, 1955.
Saturday May 23 02:50 EDT


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