Shuler v. Southern Railway Co.
Shuler v. Southern Railway Co.
Opinion of the Court
The court erred in directing a verdict and in overruling the motion for new trial. Tire plaintiff testified : that at the time of the collision it was raining pretty hard; that he was traveling at 20 or 25 miles per hour; that he looked
H. B. Crews, the engineer on the engine, testified: that he was pulling one car at the time of the collision; that the height of the engine cab above the track is seven or eight feet; that you could see a portion of Watson Street as you approached the crossing; that portion would be 75 or 100 feet before he got around the tree there; that you could not see the other portion because of a tree; that there was one large tree; that it would have taken ten to twenty seconds to pass the tree and see Watson Street; that as he approached the crossing when he first looked up he did not see the car; that when he got closer to the street he glanced up the street and the car was right there, right on them; that he was practically on the crossing
Mr. Joe Copeland, a member of the Rome Police Department testified: that he made an investigation of the collision; that when he got there the train was about 270 feet west of the crossing; that he stepped off the distance; that there was a cross sign there to indicate a railroad crossing but there was no signal like a bell or lights, etc. The engineer, recalled, testified that when his depositions were taken in February, 1960, he stated therein that he did not see the automobile until just about the time we got on the crossing; that the whistle was being blown and the bell was being rung as he approached the crossing. S. M. Barfield, the fireman on the engine at the time of the collision, testified: that the top of the engine was 12 or 15 feet from the ground; that the whistle was blowing and the bell ringing as the train approached the crossing. Mrs. Plenry McCool, witness for the defendant, testified: that she lived at 14 Watson Street, Rome, Georgia, in April of 1960, about 75 to 100 feet from the crossing involved; that there were no houses between hers and the crossing; that at the time of the collision she was sitting on the front doorstep; that it was misting rain; that it wasn’t raining hard enough to- get wet; that it had been showering but at the time it had practically quit; that her doorstep faces the railroad; that she saw the train and plaintiff’s car as they approached the crossing; that there were some bushes or shrubbery along the track there but not enough that you could not see the train; that you could see the train because the bushes were SO' scattered you can see between them; that she heard the whistle blowing and the bell ringing; that she was on the doorstep because the little girls she was keeping heard the whistle blow and they wanted to see the train; that she saw the collision; that she could tell there would be a collision, yelled
(1) The evidence raised an issue of fact as to whether there was negligence on the part of the defendant by reason of the fact that the train might have been found to have been obscured from the view of the plaintiff (Atlantic C. L. R. Co. v. Clark, 93 Ga. App. 278, 91 SE2d 386); and (2) whether the railroad was negligent in not blowing a whistle or ringing a bell (Southern R. Co. v. Riley, 60 Ga. App. 475, 4 SE2d 54; Seaboard Air-Line R. Co. v. Sarman, 38 Ga. App. 637, 639, 144 SE 810); and (3) whether the railroad was negligent in not having a warning device at the crossing to warn travelers of the approach of a train (Central of Ga. R. Co. v. Barnett, 35 Ga. App. 528 (1a), 134 SE 126; Central of Ga. R. Co. v. Brower, 102 Ga. App. 462, 465, 116 SE2d 679; Georgia Northern R. Co. v. Hathcock, 93 Ga. App. 72 (6) 91 SE2d 145; Southern R. Co. v. Garland, 76 Ga. App. 729, 47 SE2d 93, and cases cited at p. 743); and (4) whether the railroad was negligent in approaching the crossing in excess of 15 miles per hour (Southern R. Co. v. Alexander, 59 Ga. App. 852 (1), 2 SE2d 219; Davis v. Whitcomb, 30 Ga. App. 497 (13c), 118 SE 488). It does not appear from the conflicting testimony on the several issues that the plaintiff is barred from a recovery as a matter of law either because he was guilty of so great negligence in the first instance, or that his negligence was greater than the defendant’s or that he should have discovered and avoided the defendant’s negligence by the exercise of ordinary care. The issues should have been submitted to a jury.
Tire court erred in overruling the motion for new trial.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.