Central of Georgia Railway Co. v. Hurst

Eberhardt, Judge,

concurring. I agree with Judge Felton, and in addition suggest that for other reasons also the petition does not set out a cause of action. The charge that the railroad was negligent in “maintaining a dangerous, defective, hazardous and unsafe railroad crossing,” is a general allegation which must yield to the specific allegations. Palmer Brick Co. v. Chenall, 119 Ga. 837 (6) (47 SE 329). The charge 'that the railroad was negligent “in maintaining its electric signal lights so close to the ground as not to be visible by a vehicle having another vehicle preceding it,” must yield to the averment that “said light is located at a point 7 feet 10 inches above ground level,” which, as Judge Felton points out, is of sufficient height that the driver of a vehicle could and should have observed it, unless he was following too closely behind another.1 (It is to be noted that this light is at a greater distance from the ground than is required by Code § 94-509 requiring signs for the benefit of persons operating locomotives.) No statute requires that the railroad “maintain a black and white striped gate which would come down across said highway,” there is no common law duty that it do so, and that charge must fall. “There being no obligation by law resting on the railroad company to have on the side of the public road adjacent or near the railroad tracks any warning sign or metal substance which would reflect the lights of an approaching automobile and warn the driver of the danger of the presence of the railroad crossing, it is not negligence on the part of the *277railroad company to fail to have erected such sign.” Southern R. Co. v. Riley, 57 Ga. App. 26, 27 (4) (194 SE 422). Thus the charge of failing to “maintain a flashing electric signal light on the left-hand side of the crossing for eastbound traffic approaching said crossing from the west, which said light would not have been obscured by a preceding vehicle or when passing preceding vehicle,” fails to charge negligence on the part of the railroad. Likewise, the charge that the railroad was negligent “in failing to have reflectors on the side of the boxcars which would have reflected back the light and indicated the presence of a moving train,” charges no negligence, for there rests no legal obligation on the railroad to do that. “The failure of the railroad company to provide lights on the side of cars of the train as it passes over a crossing is not negligence.” Southern R. Co. v. Riley, 57 Ga. App. 26, 27 (5), supra.

This may be taking judicial notice, which should be used sparingly for striking down pleadings (Rives v. Atlanta Newspapers, Inc., 110 Ga. App. 184 (4) (138 SE2d 100), reversed on other grounds in 220 Ga. 485 (139 SE2d 395)), but see and compare Cooper v. Anderson, 96 Ga. App. 800, 807 (101 SE2d 770), where notice was taken of the custom of parents to take children with them into stores, bakeries and shops, and Harvey v. DeWeill, 102 Ga. App. 394 (116 SE2d 747) where notice was taken that motels usually have entrances opening into courtyards.