Atlantic Coast Line Railroad v. Jordan
Atlantic Coast Line Railroad v. Jordan
Opinion of the Court
1. The defendants concede that the petition, as amended, set out a cause of action good as against general demurrer; but insist that the special demurrer to the allegations of the petition that the defendants were grossly negligent in the failure of the engineer to keep and maintain a constant and vigilant lookout along the track ahead of the engine while moving
2. There are thirteen special grounds added to the original motion for new trial. Special grounds numbered 9, 13, and 16 have been abandoned. In special ground 4 the defendants contend that the court erred in charging the jury that the defendants contended that the damage to the plaintiff’s car, if any, was due to the negligence of the driver thereof, because one of their contentions was that the plaintiff’s son, as well as such driver, was negligent in not using due care in approaching said crossing and in not keeping a lookout and observing the approaching train. The evidence disclosed that the plaintiff’s son was not in charge of the operation of the car at this time, but had been hurt in a football game and had asked another person, Andy Morrell, to drive him home in this car, and that the plaintiff’s son was resting on the back seat of the car at the time, having nothing to do with the operation of the car. The failure of the court to state in this charge that the defendants so contended does not, under the facts of this case and the charge as given, require a reversal.
In special grounds 5 and 15 the defendants contend that the court erred in failing to charge that the law imposed upon the plaintiff’s son the duty of exercising ordinary care ,on the occasion in question, and that, if he failed to do so and such failure was the proximate cause of the wreck and damage to the plaintiff’s car, she would not be entitled to recover. Under the facts appearing, the court did not err in failing so to charge. There was no duty incumbent upon the plaintiff’s son, at the time, to participate in the operation of the plaintiff’s automobile. He had turned the operation of the car over to Andy Morrell, and he was resting on the back seat thereof, because of his injury, and had nothing to do with the operation of the car. Furthermore, any lookout by him would have been as fruitless as the lookout by the driver as he approached this crossing, due to the obstructions consisting of the depot, buildings, stationary boxcars, and the alleged failure of the train to signal its approach to the crossing. The jury determined that the driver of
The failure of the court to charge, as requested in special ground 6, to the effect that it was the duty of Andy Morrell, the driver of the car, on approaching this crossing to drive the automobile at such rate of speed and to keep such lookout as would meet the requirements of ordinary care, taking into consideration all the facts and conditions then existing, as appears from the evidence, does not show error and, besides, the question of the exercise of due care by the driver of said car in approaching the crossing was adequately dealt with by the court in the charge as a whole.
The principle of law embraced in special ground 7, as to a person using his senses of sight and hearing on approaching a crossing in the exercise of ordinary care, was adequately covered by the court. Besides, under the facts, the jury were authorized to find that the driver exercised due care on approaching this crossing, and also that he could not have observed said approaching train because of said obstructions and the failure of the train to signal its approach by the tolling of its bell or otherwise. The court did not err in failing to give the instruction requested in this ground. The request embraced in ground 8 was adequately covered in the charge as given, and under the facts no error appeal’s. The failure of the court to charge the instruction requested in special ground 10, to the effect that it was the duty of the driver of the car, in view of the obstructions to his view as he approached the crossing, to have stopped and listened before attempting to cross, was not error under the facts,
The court did not err, as contended in special ground 14, in failing to give the instructions therein embraced, dealing with negligence and defining ordinary care. The law embraced therein was adequately covered by the charge as given.
3. The evidence for the plaintiff tended to substantiate the allegations of her petition, as amended, which the defendants conceded was good as against general demurrer and set out a cause of action and valid grounds of negligence. The case was properly submitted to the jury. The evidence authorized the verdict in the plaintiff’s favor, and no error of law appears from any of the special grounds requiring a new trial. Therefore, the court did not err in overruling the defendant’s motion for new trial as amended.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.