A rehearing of this case was granted solely on the following ruling of this court: "The other special assignments of error are without merit." There were twelve special grounds of the motion for new trial, and grounds 1, 2, 3, 4, 5, 8, 9, 10, 11, and 12 had been passed upon directly or in effect before the above-quoted ruling was made. Therefore, said ruling was made in reference to special grounds 6 and 7.
The defendant in its answer set forth the following allegations: "5. Further answering said petition, defendant shows that the allegations of negligence charged by petitioner against defendant are the following: (a) Driving said train at said time and place at 60 miles per hour. (b) Failing to exercise ordinary care to anticipate the presence of the petitioner at said crossing, and in the operation of said train in a way to avoid injuring petitioner as he entered upon the said crossing. (c) In driving the said train at said time and place at 60 miles per hour in violation of defendant's *Page 888 duty to petitioner to exercise ordinary care in approaching the said crossing to avoid injuring petitioner. Defendant says that the Court of Appeals of Georgia and the Supreme Court of Georgia have ruled it to be the law in Georgia that whether or not it is negligence on the part of the engineer of a railroad company to fail to reduce the speed of trains so as to be able to prevent injury to persons who might be on a private crossing or pathway is a matter to be left for determination by a jury. Defendant shows that the Court of Appeals of Georgia and the Supreme Court of Georgia have likewise ruled that whether or not an engineer, in approaching a public crossing where people are to be anticipated, should so reduce the speed of his train as to avoid doing injury to a person on the crossing is a matter to be determined by a jury. Defendant shows, therefore, that according to said rulings . . there is no difference in degree as to the duty of the defendant's engineer whether he is approaching public crossings, a private vehicular crossing, or a private pedestrian crossing. Defendant shows that in order to avoid the responsibility of injury to persons on crossings under said alleged principles of law announced to be applicable by the appellate courts in this State the locomotive engineer of a train must so reduce the speed of his train in approaching crossings as to be able to stop said train should any person be upon said crossing.
"6. Defendant . . operates a railroad extending from West Point, Georgia, to Atlanta, Georgia. Its passenger trains operate into the Atlanta Terminal Station in Atlanta, Georgia. Its freight trains operate over a belt line to a point known as Hulsey Station. The length of defendant's railroad from West Point, Georgia, to Atlanta Terminal Station is approximately 86 miles. The length of the Atlanta and West Point Railroad from West Point, Georgia, over its belt line, to Hulsey Station is approximately 90 miles. Defendant shows that between West Point, Georgia, and the Atlanta Terminal Station in Atlanta, Georgia, defendant's passenger trains operate over 105 public road crossings. Between West Point, Georgia, and Hulsey Station, defendant's freight trains operate over 96 public crossings. Between West Point, Georgia, and the Atlanta Terminal Station, defendant's passenger trains operate over 57 private vehicular crossings, that is, crossings that may be used either by vehicles, including automobiles, trucks, etc., *Page 889 and pedestrians. Between West Point, Georgia, and Hulsey Station, defendant's freight trains operate over 58 private vehicular crossings. Between West Point, Georgia, and the Atlanta Terminal Station, defendant's passenger trains operate over 196 private pedestrian crossings. Between West Point, Georgia, and Hulsey Station in Atlanta, Georgia, defendant's freight trains operate over 184 pedestrian crossings. Defendant shows that the principle of law above set forth as to the duty of an engineer operating a railroad locomotive applies to public crossings, private vehicular crossings, and private pedestrian crossings.
"7. For further answer defendant shows that in order for a train to be prepared to stop at any crossing the speed of such train must be reduced to not more than 5 or 6 miles per hour when it is within 50 to 100 feet of said crossing. Defendant shows that with the exception of three miles in Troup County, Georgia, between mile posts 77 and 74, there is no point on the line of its railroad where there are not crossings over its tracks within each specific mile of said railroad. Defendant shows that for it to comply with said rule of law . . would not only cause it to lose the time that would be consumed in reducing speed in approaching said crossings and the time that would be consumed in attaining reasonable speed for the operation of its trains after passing such crossings, but said crossings are so numerous and so spaced over the line of defendant's railroad that defendant's trains could never attain a speed greater than 8 or 10 miles per hour and its average speed would be reduced to 6 or 7 miles per hour.
"8. Defendant shows that the maximum speed in the present actual operation of its passenger-trains is 65 miles per hour, and that with such maximum speed its minimum schedule from Atlanta to West Point, Georgia, and from West Point . . to Atlanta, where its trains make stops only at LaGrange, Hogansville, Grantville, Newnan, Palmetto, Fairburn, and Atlanta, requires from two hours and twenty minutes to two hours and thirty minutes. Defendant shows that to comply with said principle of law above set forth would compel its passenger trains to operate at such a reduced speed as to extend such schedule from two hours and twenty minutes to a minimum of ten hours.
"9. Defendant shows that its freight trains now operate at a maximum speed of 45 miles per hour and that at such maximum *Page 890 speed it requires from four to four and one-half hours for defendant's freight trains to operate between Atlanta and West Point, Georgia. Defendant shows that to comply with the principle of law hereinabove set forth would require such a reduction in the speed of freight trains as that it could not operate its freight trains between Atlanta and West Point within less than twelve to fourteen hours.
"10. Defendant says that for a passenger train, after having come to a stop or reduced its speed to 6 miles per hour, to attain its maximum speed would require a distance of one mile. Defendant says that for the average freight train, after having come to a stop or reduced its speed to 6 miles per hour, to reattain its maximum speed would require a distance of not less than one and one-half miles.
"11. Defendant shows that on account of the numerous crossings on the line of defendant's railroad none of its trains could ever obtain the maximum speed.
"12. Defendant further shows that none of said crossings present conditions making said crossings peculiarly dangerous.
"13. Defendant further shows that the crossing at which petitioner claims to have been injured was not peculiarly dangerous, nor did any condition exist that would require said crossing to be treated differently from the various other crossings on the line of the defendant's railroad. Defendant says that while said train approaches said crossing in a cut that the approach from the south has a straight track for several hundred feet; that the width of the railroad bed between the banks of said cut is such that a person operating a truck or automobile can bring the same to a complete stop in a safe position relatively to said track and the operation of trains thereover, and see an approaching train for a distance of 500 feet or more.
"14. Defendant shows that it is engaged in interstate commerce, and all of its trains, whether freight or passenger, are operated in interstate commerce.
"15. Defendant shows that the train that is charged to have collided with the truck of petitioner and to have caused his injury and damage to his truck was a passenger train, and that said passenger train, at the time of said alleged occurrence, was being operated in interstate commerce. Defendant says that said passenger *Page 891 train was what is known as a through passenger train, hauling several Pullman cars besides day coaches, mail coaches, and express coaches; that said train was hauling passengers traveling from without the State of Georgia into the State of Georgia and was similarly handling mail, baggage and express from without the State of Georgia into the State of Georgia.
"16. Defendant says that to have required said train to be operated in accordance with the legal principles above set forth would have increased the length of time of operating said train from West Point, Georgia, to Atlanta, Georgia, not less than seven and one-half hours in addition to the time ordinarily consumed in the schedule for the operation of said train.
"17. Defendant shows that said law, as announced by the Supreme Court and the Court of Appeals of Georgia and as stated to be the law of Georgia and binding upon this defendant . . in the operation of its trains, and particularly in the operation of the above-described passenger train, constitutes an unreasonable regulation of interstate commerce and is a violation of paragraph 3 of section 8 of article 1 of the constitution of the United States, said paragraph providing among the powers of Congress the power to regulate commerce with foreign nations and among the several States and with the Indian Tribes.
"18. The defendant, therefore, shows that said principles of law, so announced by the Supreme Court of Georgia and by the Court of Appeals of Georgia, and sought to be applied as against defendant in said case, being violative of paragraph 3 of section 8 of article 1 of the constitution of the United States, is void, without force and effect, and not applicable to this defendant in the operation of said train and that this defendant is not, and was not, guilty of any negligence as so alleged creating liability on the part of this defendant to said petitioner."
None of the above-quoted paragraphs of the answer was demurred to. Special ground 6 of the motion for new trial alleges that on the trial the defendant had present three witnesses, T. W. Graft, S. B. Bullington, and H. R. Butler, whose testimony would have supported the allegations of fact set out in paragraphs 5 to 18, inclusive of the answer, and that the court was so informed. The ground set forth in great detail the facts alleged in said paragraphs of the answer, and alleges that the court was informed that the *Page 892 three witnesses would testify in support of those facts and, in the absence of the jury, counsel for the defendant detailed to the court the facts which he expected to establish by their testimony, such facts supporting said paragraphs of the answer. The court refused to allow said witnesses to so testify, and the ground assigns that ruling as error.
In Seaboard Air-Line Ry. v. Blackwell, 244 U.S. 310 (37 Sup. Ct. 640, 61 L. ed. 1160), where the decision of this court was reversed (16 Ga. App. 504), the headnote reads as follows: "That provision of the `blow-post' law of Georgia (Civil Code, 1910, §§ 2675-2677), which requires railroad companies to check the speed of trains before public road crossings so that trains may be stopped in time should any person or thing be crossing the track there, is a direct and unconstitutional interference with interstate commerce as applied to the state of facts specifically pleaded by the defendant interstate carrier in this case, whereby it appears that, to comply with the requirements, the interstate train in question would have been obliged to come practically to a stop at each of 124 ordinary grade crossings within a distance of 123 miles in Georgia extending from Atlanta to the South Carolina line, and that more than six hours would thus have been added to the schedule of time of four hours and thirty minutes. Southern Railway Co. v. King, 217 U.S. 524 [30 Sup. Ct. 594,54 L. ed. 868], distinguished." In the Blackwell case the railroad set up in its answer substantially the same allegations of fact that are set up in paragraphs 5 to 18 inclusive of the answer in this case, and in the Blackwell case the judgment of this court affirming the ruling of the trial court sustaining the demurrer to the answer was reversed by the Supreme Court of the United States. In our opinion the ruling in the Blackwell case (the question here involved being a Federal one) is controlling on this phase of the instant case, and the court erred in rejecting the proffered evidence set forth in special ground 6 of the motion for new trial. It is true that in the Blackwell case the duty on the railroad was imposed by a statute of this State, while the duty in this case was imposed by certain unanimous decisions of the Supreme Court of Georgia and the Court of Appeals of Georgia. However, in our opinion, the burden imposed by such decisions upon interstate railroad carriers, which seriously interferes with interstate commerce, is as substantial and hurtful as if the *Page 893 burden were imposed by a statute, and we so hold.
In Western Union Telegraph Co. v. King, 61 Ga. App. 537,538 (6 S.E.2d 368), this court, in dealing with an interstate telegraph message and applying a Federal rule instead of the Georgia rule as to the allowance of nominal damages, said: "The award of damages by way of a different rule as to nominal damages would be just as objectionable and create or tend to create as much lack of uniformity in the regulation of interstate commerce as a statute which had a like effect." (Italics ours.) The decision of this court in Seaboard Air-Line Ry. Co. v.Benton, 43 Ga. App. 495 (159 S.E. 717), heretofore cited in our ruling sustaining the overruling of the demurrer to the petition, is not applicable to this phase of the instant case, since the railroad crossing in question in that case was "a public crossing in a populous community" where the traffic was very heavy, thereby making the crossing a dangerous one. Furthermore, the record in that case shows that the defendant railroad was permitted to introduce evidence in support of itsplea that to subject it to damages on account of alleged negligence in failing to check the speed of its train on approaching the public crossing at which the homicide occurred would, in view of the time that would be thus consumed atnumerous crossings, amount to an unauthorized regulation ofinterstate commerce, in that it would impose an unreasonableburden thereon, thus violating the commerce clause of the Federal constitution. It further appears from an examination of the record in the Benton case that the evidence introduced by the railroad to support its plea failed to meet the requirements of the law as laid down in the Blackwell case, supra. Our present ruling is not contrary to our previous holding that the demurrer to the petition was properly overruled. The facts set forth in the plea were matters of defense and could not properly be injected into the demurrer.
Special ground 7 complains of the following charge: "I charge you that one of the issues made by the pleadings and the evidence in this case is whether the failure of the engineer in charge of the defendant's train, if he did so fail, to give any warning of the approach of the train and have it under control when approaching the crossing described in plaintiff's petition amounted to a lack of ordinary care under the circumstances of this case. In your consideration of the question whether the agents and employees of the *Page 894 defendant company, at the time and place alleged in this petition, exercised ordinary care in approaching said private crossing, you would consider the speed of the train, as shown by the evidence; you would consider the length of time that said crossing had been in existence and the use of same by persons residing in said community, as shown by the evidence; whether this crossing was used with the consent of the defendant company and maintained by it; whether the use of the crossing, as shown by the evidence in the case, was such as would make the servants of the defendant company anticipate the presence of persons on this crossing; and whether it was used frequently or infrequently by the people in that community." The ground contends "that so much of said charge as related to the question of the engineer having said train under control when approaching said crossing, and in authorizing the jury to consider the speed of the train in approaching said crossing, was error in that it imposed upon said defendant a duty not imposed by law, and further in that to submit to the jury the requirement that the engineer have the train under control was submitting to the jury a principle of law that constituted an undue burden on, and an unreasonable regulation of, interstate commerce in violation of paragraph 3 of section 8 of article 1 of the constitution of the United States." In the above-quoted charge, the jury were not instructed, either literally or substantially, that it was the duty of the defendant's engineer in approaching the crossing in question to operate the train at such a speed and to have it under such control that he could stop it before it reached the crossing in the event that any person should be thereon. In our opinion, the charge is not fairly subject to any of the exceptions set forth in the ground.
The statement in our original opinion that "the other special assignments of error are without merit" is withdrawn, and the present opinion is substituted therefor.
Judgment, as so modified, adhered to. Gardner, J., concurs inthe result, under the facts of this case.