Georgia Northern Railway Co. v. Dalton

Deen, Judge, dissenting.

The majority opinion holds that as a matter of law there is no evidence of negligence on the part of the defendant. It bases this finding on certain facts, all of which are controverted. Railroad employees testified that bell and/or whistle were sounding, but there is contrary evidence that the plaintiff was looking and listening and did not see or hear the train. This makes a jury issue on this question. Climer v. Southern R. Co., 43 Ga. App. 650 (159 SE 782). "Where a number of witnesses testify positively that a train whistle was blown on the occasion in question, and plaintiff, suing by next friend, when asked, 'Did you hear the whistle?’ answered, 'Not that I remember,’ such answer is equivalent to testifying that he did not hear the train whistle, Franklin v. Mayor &c. of Macon, 12 Ga. 257 (2), Mimbs v. State, 2 Ga. App. 387, 388 (2) (58 SE 499), Saliba v. Saliba, 202 Ga. 791, 806 (44 SE2d 744), and the question thus being supported on one side by positive evidence and on the other side by negative evidence, is issuable and not to be determined by the court as a matter of law. Climer v. Southern R. Co., 43 Ga. App. 650 (1, 2) (159 SE 782), and cits.; Hunter v. State, 4 Ga. App. 761 (1) (62 SE 466); Pendergrast v. Greeson, 6 Ga. App. 47 (64 SE 282); Peak v. State, 5 Ga. App. 56 (62 SE 665).” Atlantic C. L. R. v. Heath, 109 Ga. App. 422 (2) (136 SE2d 387).

*40There is further evidence that there were stop signs at the crossing, but the failure of a motor vehicle driver to stop does not per se block him from recovery. Ga. R. Co. v. Davis, 86 Ga. App. 63 (70 SE2d 788). There is evidence that the plaintiff was going 65 to 80 miles per hour (65 being the speed limit and therefore not negligence per se), but this is contradicted by testimony that the plaintiff was going between 55 and 60. The court holds that there were no obstructions barring a driver’s view of the train, but this is contradicted by the driver’s testimony. There is nothing particularly sacrosanct about photographs which demands that the view they appear to portray be believed as a matter of law over sworn testimony, particularly when they were not taken contemporaneously with the collision. "The positive testimony of a witness that a visible crack existed in the western wall was not absolutely overcome and rebutted by the introduction of a photograph of the wall, which failed to show any such physical condition. The photograph was to be considered only in connection with the other evidence and was not conclusive.” Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578 (1a) (162 SE 299). Further, let us consider the testimony of one of the railroad employees: "Q. You don’t know whether or not somebody in a car in that bottom gets their vision blocked when they are looking up at that train, do you? A. No ... Is [Mr. Tillison] the one you’ve talked to every time you’ve had a wreck at that crossing? A. Yes, sir. Q. How many times have you run into people down there? A. Oh, about three times. Q. How many times have you almost hit folks down there? A. Every time you go over it.”

This testimony was not objected to, and, when given by the defendant engineer, is certainly sufficient to raise a jury question as to the degree of care the railroad should have exercised in view of its actual knowledge that the crossing was exceedingly dangerous. It also to some measure at least supports the plaintiffs sworn testimony that she did look and that the view was obstructed, because at a normal intersection motorists are not "almost hit” every time a train goes by. "It is for the jury and not this court to say, if the train was not perfectly visible to [the plaintiff], why this was so and whether it *41reveals an absence of ordinary care on his part. Atlanta & W. P. R. Co. v. McCord, 54 Ga. App. 811, 813 (189 SE 403).” Seaboard C. L. R. Co. v. Mitcham, 127 Ga. App. 102, 104 (192 SE2d 549).

The cases cited in the majority opinion are good law, but I do not agree with their applicability here. In Central of Ga. R. Co. v. Brower, 218 Ga. 525 (128 SE2d 926), quoted at length, the facts were that the taxi driver, after stopping behind another car, apparently blacked out, and hit the thirty-third car in a row of 83 railroad cars. In Central R. & Bkg. Co. v. Smith, 78 Ga. 694 (3 SE 397), the plaintiff was a pedestrian trespasser walking along the railroad tracks at night. The reversal of this case is apparently based entirely on the proposition that there is no evidence of the defendant’s negligence, and the record does not bear this out. Insofar as it may be based on comparative negligence, the law is that in such cases the ultimate decision lies with the jury, not this court. The fact that the plaintiff sued for damages in the sum of $250,000 and recovered $20,000 suggests that the jury did in fact base its verdict on comparative negligence, on which subject it was correctly instructed by the trial court.

I am authorized to state that Presiding Judge Pannell and Judge Evans concur in this dissent.