1. The uncontroverted evidence in this case shows that the proximate cause of the collision of the railroad-train with the plaintiff's automobile which stopped on the railroad crossing in front at the defendant's approaching train, was due to the negligence of the plaintiff, or to his failure to exercise ordinary care, and not to the negligence of the defendant.
2. Under the law and the evidence, the court did not err in directing a verdict for the defendant.
DECIDED DECEMBER 3, 1943. Eugene Lord sued the Southern Railway Company to recover damages to his automobile alleged to have been caused by the negligence of the defendant. The petition alleged that the automobile of the plaintiff, while being driven by him at about 10:30 p. m. stalled on the track of the defendant company at a public crossing approximately one-fourth of a mile in front of an approaching train of the defendant; that the engineer and fireman did not slow the speed or stop the train, but it ran into and demolished the plaintiff's automobile in an interval of from one to two minutes after the automobile had stalled on the track at the crossing; that the defendant was negligent "because the agents and employees of said train did not: (a) maintain a proper and diligent lookout along the track in front of said moving train; (b) operate said train at a speed whereby they could stop the same in order to avoid striking objects stranded on said right of way; (c) by not stopping said train before same ran into said stalled automobile." The defendant denied liability, and alleged that as the engine and train in charge of its agents and employees rounded the curve approximately one-half mile south of the crossing at which the accident occurred, its engineer and fireman in charge of said engine and train were keeping a close lookout ahead and the headlight on the engine was building in a proper manner; that the brakes on the engine, both service and emergency, were in proper working order; that as soon as the headlights on the engine disclosed the presence of the plaintiff's automobile on the crossing to the engineer and fireman in charge of said engine and train, the engineer immediately applied the brakes in emergency, but the engine and train were then so close upon the crossing that it was impossible to stop *Page 274 the engine and train before it collided with the plaintiff's automobile; that the engineer in charge of the engine and train blew the proper signals upon the whistle of the locomotive upon approaching the crossing, and upon observing plaintiff's automobile, continued to blow warning blasts until the engine reached the crossing upon which the automobile was stalled; that from a point approximately a quarter of a mile south of the crossing at which the accident occurred down to the crossing, defendant's tracks slope downward at a slight grade, and until a point approximately one-eighth of a mile south of the crossing is reached by the engine, the headlight would not show an automobile on the crossing; that any injury or damage resulting to the plaintiff's property was due wholly to the failure of the plaintiff to exercise ordinary care under the circumstances with respect to his property; and to his negligence in operating the automobile so as to cause it to stall on defendant's tracks.
The plaintiff testified: "I was about four miles north of Hazlehurst towards Lumber City. I was going toward the highway, crossing the railroad, slowed down for the crossing, and the car was shutting off on me just as I rolled up to the crossing. I must have put it in gear, and started to crank back up, and stalled just as the front wheels rolled on the track. The train must have been two or three hundred yards away, and I tried to push it off of the track. It must have been in gear, as I could not push it; but I do not know if it was or not. When I started across the crossing, I had plenty of time to get across before the train got there, if the car had not stalled. The train was two or three hundred yards away when it stalled. The train track there was reasonably straight. The lights of my car went out the same time it stalled. . . I am familiar with the crossing where I was struck. I travel the road frequently and knew the crossing was there. The train was two or three hundred yards away south when I approached the crossing. I saw it when I started upon the crossing. I did not notice any blow post. Its headlight was burning. The whistle was not being blown when I drove on the track; it blew just as I got on it. I would say the ground cable of my car caused it to stall. It gave trouble the night before. I made no attempt to flag the train down. I tried to push the car off, but was unable to do so. I do not know if it was in gear or not. I pushed from *Page 275 the front end. I heard the whistle blow just when I drove on the crossing. The car started to die just before I started on the crossing. I put it in low gear and it went on the crossing before it choked down. I stopped for the crossing and thought I could make it across. I had put it in gear to catch it up and go on across and it choked down. I felt it choke down as I drove up to the crossing; was going to stop, then decided I could make it, threw it back in gear with the train coming 300 yards away down the track with the headlight burning. Its whistle did not blow until after I stopped. I am unable to tell you exactly how straight the track is. The road along there parallels the track pretty close to where I crossed it, but I do not know how far — not a mile. I did not pay any attention to the headlight that night when the train was coming a mile away. I saw it when I was near the crossing and thought I could make it."
The engineer testified: "I was the engineer in charge of the Southern Railroad freight train and engine. . . I was traveling about 45 miles per hour when I turned the curve about a mile south of this crossing. I was sitting looking straight down the track. Shortly after passing the blow post I saw an object on the track — this was the first time it was visible. No lights were burning on the car. I started to blow for the crossing before I saw the object on the track. I immediately put on the emergency brakes, and kept blowing the whistle — went from regular crossing blow to alarm. I saw no one about the car before I hit it. If anyone had been in front trying to push it off, I think I would have seen him. The brakes took hold properly when I applied them and I consider I made a fairly good stop considering the grade. I stopped in about 25 to 30 car lengths — the average car is about 50 feet. After the accident I stopped and waited a little bit, then walked back up to the car. Did not see anybody until I got up there. Then I found the young man, Eugene Lord, who was on the stand a while ago. He did not make any statement about why he happened to stop on the track. I asked him if he heard me blow the whistle, and he said: `No, I heard you blow up around the curve there.' About a mile away there is another crossing, without a whistle blow, but I always blow there because of the curve. He said `Yes, I heard you blow before you topped the hill'. . . It is something like three-fourths of a mile from the top of the hill to the *Page 276 crossing. I was on the right hand side of the cab. I had visibility of the track immediately in front of me. Could see to the left a good ways off but not within about 200 feet of the engine. I was about 500 or 600 feet from the car before I saw it, and was traveling about 45 miles per hour. There was a blow post up there. I have been on this run about six years and am familiar with that blow post and crossing. The blow post is around 700 or 800 feet from the crossing. . . I was within 500 or 600 feet of this car; had been coming down hill, but was then on level ground; and there was a blow post warning me of the crossing. I went 25 car lengths past the place I hit the car. I was not going any faster than my schedule. I am required to run 45 miles per hour."
The fireman testified: " I remember the accident that occurred a few miles north of Hazlehurst. I was on the left side of the cab. There is a curve about 1400 yards this side of the crossing to the left. I was looking ahead as we came around the curve. There is a little rise out there, about 1100 feet, — 1100 to 1400 this side of the curve from where we hit the car. When we turned over the hill was the first time I got a chance to see the bulk of the care and know what it was. I could see the car pretty well when the lights settled down: I did not see anyone about the car. I did not see anyone get out and try to push it off. We were traveling around 45 miles an hour. When I first saw it we were near or in the neighborhood of the blow post. Mr. Stein blew the road-crossing signal; just as soon as he finished he happened to see the car and went to blowing the warning blow, and put the brakes in emergency. That happened at approximately the same time I saw the car. The brakes worked properly and we made a fairly reasonable stop. We traveled 25 or 30 cars after Mr. Stein put on the brakes. After the accident I got off the engine and walked back to the wrecked car. One of the crew, I do not know who, in my presence, asked the young man at the scene of the wreck, `Son, what was the matter and he said, `My starter stuck.'"
There was other testimony to the effect that the crossing on which the automobile stalled was in good condition, and that an automobile could easily be pushed off of it on either side of the track with one hand, if the automobile was not in gear, or the emergency brake was not on. One of the plaintiff's witnesses testified that he placed his automobile on the crossing, and could not *Page 277 keep it from rolling off unless he put it in gear, or had the brakes on.
After the introduction of testimony by both sides, the court directed a verdict for the defendant. The plaintiff made a motion for a new trial, which was overruled, and he excepted. The plaintiff himself testified that he saw the train approaching some two or three hundred yards south of the crossing immediately before he drove onto the crossing; that he thought he had time to get across the crossing, and that he would have gotten across, had not his automobile stalled on the crossing; that the ground cable of his automobile caused it to stall; and that it gave him trouble the night before the accident. He testified in part: "I stopped for the crossing and thought I could make it across. I had put it in gear to catch it up and go on across and it choked down [meaning the automobile]. I felt it choke down as I drove up to the crossing; was going to stop, then decided I could make it; threw it back in gear with the train coming 300 yards down the track with its headlight burning." The plaintiff was familiar with the crossing where his car was struck by the train, and testified that he traveled the road there frequently. A train coming from the south and approaching the crossing where the automobile was struck could be seen for approximately a mile by one traveling the road to the crossing from the west to the east whereon the plaintiff was traveling that night. It was held inThomas v. Central of Georgia Railway Co., 121 Ga. 38 (48 S.E. 683): "One who deliberately goes upon a railroad track in front of an approaching train, thinking that she can cross before the train reaches her, and miscalculating its speed because she is in front of it, can not recover for injuries resulting from being run down by the train, although the company's servants may have been negligent in running at a high rate of speed at that point, and also in failing to check the speed of the train at a public road which crossed the track between the place where the train was when first seen by the plaintiff and the point at which the injury occurred." See Southern Railway Company v. Blake,101 Ga. 217 (29 S.E. 288), and cit., and Harris v. SouthernRailway Company, 129 Ga. 388, 391 (58 S.E. 873). *Page 278
The only allegations of negligence in the petition were that the agents and employees of the defendant did not maintain a proper and diligent lookout along the track in front of the train; did not operate said train at a rate of speed whereby they could stop the same in order to avoid striking an object stranded on the right of way; and did not stop said train before it ran into the stalled automobile.
The uncontroverted evidence for the defendant showed that both the engineer and the fireman were keeping a close lookout ahead as the train approached the crossing; that the headlight of the engine was burning, and in good condition; that the crossing signal was blown at the blow post situated south of the crossing; that because the track approaching the crossing was slightly downgrade the lights on the engine shown over the top of the car until the engine was within 500 or 600 feet of the car, and the car could not be observed until the engine was this distance from it; that the brakes of the engine were in good condition, and were applied in emergency immediately upon discovery by the engineer of the plaintiff's car on the track; that it was impossible to stop before hitting the car; that the speed of the train at the time the engineer discovered the presence of the car on the track was 45 miles per hour, which was his proper schedule; that the train went approximately 25 car lengths past the crossing before it stopped; that this was a very good stop considering the size of the train and the fact that the track was slightly downgrade approaching the crossing; that the crossing was in good condition and hard packed; that the rails were not more than one and one-half inches above the surface of the ground; that the road crossing sloped slightly up to the railroad track on the west side, and down from the railroad track on the east side; that a man could push a stalled automobile off of the track situated where the plaintiff's car was at the time of the accident with one hand when the car was not in gear or the brakes were not on; that an automobile would not stand on the track where the plaintiff's car was when it was hit unless it was either in gear or the brakes were set.
There was no evidence of any negligence on the part of the defendant other than the presumption of negligence arising from the damage to the plaintiff's automobile by the operation of the defendant's train, and this was rebutted by the uncontradicted evidence in the case. Our Code, § 94-703, provides that "no person shall *Page 279 recover damages from a railroad company for injury to himself or his property, when the same is done by his consent or is caused by his own negligence." It is also well established law, that if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. § 105-603. It was said in the case ofWestern A. R. Co. v. Ferguson, 113 Ga. 708, 713 (39 S.E. 306, 54 L.R.A. 802): A railroad track is a place of danger, and one who goes thereon is bound to know he is going into a place where he is subject to the dangers incident to the operation of trains upon that track. This is true without regard to the place where the track is, whether in the country where pedestrians are not expected to be, or at a public crossing, or at a street crossing, or at the stations and depots of railroad companies, where persons are expected and invited to be present, no matter where the track is located, any person who goes upon the same is bound to know that he is going upon a place where his presence would be attended with more or less danger. The uncontroverted evidence in the present case shows that the plaintiff drove his automobile onto a railroad crossing in front of an approaching train, thinking that he had time to get across before the train reached the crossing; but that his automobile stalled on the crossing, due to his own negligence in operating the car, or to a defective condition of the car, which he knew about before he drove it on the crossing; and that this was the proximate cause of the resulting damage to his automobile, instead of any negligence on the part of the railroad company. In this connection see Hines v. Stevens, 26 Ga. App. 379 (106 S.E. 298).
The plaintiff contends that under the evidence the court should have submitted the case to the jury, and that he erred in directing a verdict for the defendant. Of course, it is well settled law in this State that questions of negligence, proximate cause, and failure to exercise ordinary care in avoiding the consequences of another's negligence, are questions for a jury to determine, except in plain and indisputable cases; but we think the evidence in the present case plainly shows that the damage sustained by the plaintiff to his automobile was not caused by the negligence of the defendant.
Under the law and the evidence, the court did not err in directing a verdict for the defendant.
Judgment affirmed. Felton, J., concurs. Stephens, P. J.,concurs in the judgment. *Page 280