O.C.G.A. § 46-8-190 (2019)

Annotations

JUDICIAL DECISIONS Analysis General Consideration Negligence 1. In General 2. Lack of Proximate Cause and Other Defenses Persons Protected Crossings Practice and Pleading 1. In General 2. Instructions General Consideration Editor’s notes. - Some of the decisions cited below were decided under former Code 1882 §§ 708-710, former Code 1873, § 708 and former Code 1895, § 2222. Constitutionality. - Former Code 1933, § 94-506 (see O.C.G.A. § 46-8-190) was not unconstitutionally vague. Southern Ry. v. Shealey, 382 F.2d 752 (5th Cir. 1967). Code Sections 46-8-190 - 46-8-192 intended for protection at public crossings. - Ga. L. 1918, p. 212, §§ 2-5 (see O.C.G.A. §§ 46-8-190, 46-8-192) were intended for protection of persons and property at public crossings, and the provisions of these sections applied only where injury was done at public road crossings. Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932). The purpose of Ga. L. 1918, p. 212, §§ 2-5 (see O.C.G.A. §§ 46-8-190 - 46-8-192 with respect to giving signals in approaching a crossing was to give warning to persons upon the crossing or those who may be approaching the crossing or whose animals may be scared by the sudden and unwarned approach of the train. Pollard v. Clifton, 62 Ga. App. 573, 9 S.E.2d 782 (1940). The purpose of Ga. L. 1918, p. 212, §§ 2-5 (see O.C.G.A. §§ 46-8-190 - 46-8-102), in-

sofar as they limit the speed of trains, was to protect people from injury to person and property only when using the crossings. Harrison v. Central of Ga. Ry., 39 Ga. App. 366, 147 S.E. 177 (1929). The object of the law requiring those in charge of railroad trains to sound a whistle upon approaching a crossing is to notify persons who might come within the realm of the danger of a train at the railroad crossing. Southern Ry. v. Riley, 60 Ga. App. 475, 4 S.E.2d 54 (1939). Penal consequences for violation of section. - Violation of provisions of former Code 1933, §§ 94-506 (see O.C.G.A. § 46-8-190) made penal by former Code 1933, § 94-9903 (see O.C.G.A. § 46-8-191), and the violation of a statute enjoining a duty of diligence constituted negligence as a matter of law, and was not issuable. Williams v. Southern Ry., 99 Ga. App. 503, 109 S.E.2d 343 (1959). Strict construction. - Former Code 1883, §§ 708-710, being penal, should be strictly construed. Morgan v. Central R.R., 77 Ga. 788 (1886) (decided under former Code 1883, §§ 708-710). Applicability to trains approaching or passing blow-post points. - Former Code 1883, §§ 708-710 applied to trains approach-

ing or passing beyond points where blow-posts should be located, and not to those working exclusively between such points. Morgan v. Central R.R., 77 Ga. 788 (1886) (decided under former Code 1883, §§ 708-710). Livestock killed near blow-post. - Ga. L. 1918, p. 212, §§ 2-4 (see O.C.G.A. § 46-8-190) applied where stock was killed between blow-post and crossing. Port Royal & W.C. Ry. v. Phinizy, 83 Ga. 192, 9 S.E. 609 (1889); Bugg v. Cook, 32 Ga. App. 116, 122 S.E. 714 (1924). Collision not necessary. - If, by reason of a failure to observe the duty required by this section the locomotive comes within such close proximity to an animal that it takes fright, runs away, and injury results to the person in consequence of being thrown from the vehicle, the company was liable for such injury, although there be no actual contact between the locomotive and the vehicle or its occupant. Bowen v. Gainesville & S.R.R., 95 Ga. 688, 22 S.E. 695 (1895); Georgia S. & F. Ry. v. Shobe, 142 Ga. 767, 83 S.E. 786 (1914). Cited in Southern Ry. v. Pair, 32 Ga. App. 378, 123 S.E. 142 (1924); Atlantic Coast Line R.R. v. Spearman, 42 Ga. App. 536, 156 S.E. 824 (1931); Western & A.R.R. v. Michael, 44 Ga. App. 503, 162 S.E. 294 (1932); Georgia R.R. & Banking Co. v. Farmer, 45 Ga. App. 130, 164 S.E. 71 (1932); Southern Ry. v. Abercrombie, 45 Ga. App. 623, 165 S.E. 901 (1932); Central of Ga. Ry. v. Leonard, 49 Ga. App. 689, 176 S.E. 137 (1934); Pollard v. Gorman, 52 Ga. App. 127, 182 S.E. 678 (1935); Bazemore v. Powell, 54 Ga. App. 444, 188 S.E. 282 (1936); Pollard v. Savage, 55 Ga. App. 470, 190 S.E. 423 (1937); Georgia N. Ry. v. Rollins, 62 Ga. App. 138, 8 S.E.2d 114 (1940); Southern Ry. v. Nix, 62 Ga. App. 119, 8 S.E.2d 409 (1940); Powell v. Jarrell, 65 Ga. App. 453, 16 S.E.2d 198 (1941); Powell v. Smith, 70 Ga. App. 754, 29 S.E.2d 521 (1944); Atlantic Coast Line R.R. v. Sellars, 81 Ga. App. 381, 59 S.E.2d 24 (1950); Atlantic Coast Line R.R. v. Green, 84 Ga. App. 674, 67 S.E.2d 184 (1951); Central of Ga. Ry. v. Tyson, 86 Ga. App. 122, 70 S.E.2d 914 (1952); Southern Ry. v. United States, 197 F.2d 922 (5th Cir. 1952); Shuler v. Southern Ry., 106 Ga. App. 523, 127 S.E.2d 471 (1962); Heath v. Charleston & W.C. Ry., 218 Ga. 786, 130 S.E.2d 712 (1963); Terry v.

Central of Ga. Ry., 108 Ga. App. 204, 132 S.E.2d 573 (1963); Savannah & A. Ry. v. Ward, 110 Ga. App. 529, 139 S.E.2d 154 (1964); Southern Ry. v. Grogan, 113 Ga. App. 451, 148 S.E.2d 439 (1966); Southern Ry. v. Gordons Transps., Inc., 117 Ga. App. 740, 161 S.E.2d 879 (1968); Bennett v. Seaboard Coast Line R.R., 302 F. Supp. 271 (S.D. Ga. 1969); Nelson v. Seaboard Coast Line R.R., 122 Ga. App. 521, 177 S.E.2d 799 (1970); Gross v. Southern Ry., 446 F.2d 1057 (5th Cir. 1971); Louisville & N.R.R. v. Bush, 131 Ga. App. 405, 206 S.E.2d 58 (1974); Seaboard Coast Line R.R. v. Davis, 139 Ga. App. 138, 227 S.E.2d 915 (1976); Johnson v. UPS, 616 F.2d 161 (5th Cir. 1980); Southern Ry. v. Georgia Kraft Co., 188 Ga. App. 623, 373 S.E.2d 774 (1988); Crockett v. Norfolk S. Ry., 95 F. Supp. 2d 1353 (N.D. Ga. 2000), aff ’d, 239 F.3d 370, (11th Cir. 2000). Negligence 1. In General Failure to comply with section as negligence. - Failure to comply with the statutory requirements was negligence per se, if such failure was the proximate cause of the injury. Augusta & S.R.R. v. McElmurry, 24 Ga. 75 (1858) (decided under former law). Western & A.R.R. v. Jones, 65 Ga. 631 (1880); Central R.R. & Banking Co. v. Smith, 78 Ga. 694, 3 S.E. 397 (1887) (decided under former Code 1882, §§ 708-710). Western & A.R.R. v. Strickland, 114 Ga. 133, 39 S.E. 943 (1901) (decided under former law). Georgia & A. Ry. v. Cook, 114 Ga. 760, 40 S.E. 718 (1902) (decided under former law). Southern Ry. v. Combs, 124 Ga. 1004, 53 S.E. 508 (1906) (decided under former law). Seaboard Air-Line Ry. v. Hollis, 20 Ga. App. 555, 93 S.E. 264 (1917) (decided under former law). Davis v. Whitcomb, 30 Ga. App. 497, 118 S.E. 488 (1923). Failure to blow train whistle. - Failure to blow a whistle on a train as required by Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190) is negligence per se; such negligence is sufficient to impose liability on the railroad if it is the proximate cause of the collision. Gross v. Southern Ry., 414 F.2d 292 (5th Cir. 1969). Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190) does not require ringing of a bell. Atlantic Coast Line R.R. v. Studdard, 99

Negligence (Cont’d) 1. In General (Cont’d) Ga. App. 609, 109 S.E.2d 523 (1959). No duty upon engineer to bring train to stop at crossing. - Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190) imposes no absolute duty upon engineer to have engine under such control that the engineer can bring it to a stop, but only that the engineer shall exercise due care to avoid doing injury to any person or property which may be on such crossing, and it is for the jury to decide what amount of care under the circumstances is a compliance with those provisions. Georgia R.R. & Banking Co. v. Cook, 94 Ga. App. 650, 95 S.E.2d 703 (1956). Duty of railroad to anticipate presence of people at crossings. - The law, in requiring the agents and employees of railway companies to perform specific acts of diligence in approaching public crossings, necessarily implies that it is the duty of companies to anticipate that persons may be present at such crossings. Central of Ga. Ry. v. Johnston, 45 Ga. App. 773, 165 S.E. 916 (1932). Failure to perform required acts may amount to negligence independent of section. - Although a failure to observe statutory requirements as to duties required of those in charge of a train when approaching a crossing is not negligence per se as to one not at the crossing, a failure to perform any of the acts required by Ga. L. 1918, p. 212, §§ 2-4 (see O.C.G.A. § 46-8-190) may, independently of that section, under the circumstances of the particular case, amount to negligence. Hines v. Rubnitz, 26 Ga. App. 354, 106 S.E. 589 (1921). Obstructing view may be separate negligent act. - The maintaining of cars on sidetracks so as to obstruct the view of persons entering the crossing may be considered by the jury as a separate act of negligence contributing to the injury although other acts of negligence might be alleged in regard to the speed of the train, failure to signal and to provide flagmen, etc. Western & A.R.R. v. Davis, 116 Ga. App. 831, 159 S.E.2d 134 (1967). 2. Lack of Proximate Cause and Other Defenses Defenses available to railroad after negligence established. - When those in charge

of a railway train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured by the train, the only defenses open to the company are that the injury was done by the consent of the person injured, or that by the observance of ordinary care the person could have avoided the injury, or, in mitigation of damages, that the person’s negligence contributed to it. Alabama G.S. Ry. v. Gross, 61 Ga. App. 609, 7 S.E.2d 38 (1940). When those in charge of a railway train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured, the only defenses open to the company are that the injury was done by the consent of the person injured, or that by the observance of ordinary care the person could have avoided the injury, or, in mitigation of damages, that the person’s negligence contributed to it. Clements v. Central of Ga. Ry., 41 Ga. App. 310, 152 S.E. 849 (1930). Proximate causation necessary between negligence and injury. - If the failure to comply with Ga. L. 1918, p. 212, §§ 2-4 (see O.C.G.A. § 46-8-190) is not the proximate cause of the injury, for example where no post is erected but the engineer nevertheless blew the whistle in accordance with the legal requirements, the presumption of negligence is conclusively rebutted. Stanford v. Southern Ry., 36 Ga. App. 319, 136 S.E. 804 (1927). Assuming that under the statute it may well be true that the engineer is given no sort of discretion as to when or under what circumstances it might or might not be obligatory to maintain a constant and vigilant lookout along the track ahead of the engine when approaching a crossing, but that it is the engineer’s ever-present duty to obey the legal mandate relative thereto; it nevertheless follows that the engineer’s failure to comply with such a duty would not support a cause of action for damages unless such failure on the engineer’s part bore some causal relation to the injury. Western & A.R.R. v. Leslie, 48 Ga. App. 714, 173 S.E. 170 (1934). No proximate cause where party aware of train’s approach. - Before a railroad company can be absolved from negligence for failure of the operator of a train to give

crossing alarm required by statute by blowing a whistle or ringing a bell on approaching a railroad crossing, it must appear that the person injured had knowledge of the approach of the train, or should by the exercise of ordinary care have known of the approach of the train in time to avoid the injury. Atlanta & W.P.R.R. v. McCord, 54 Ga. App. 811, 189 S.E. 403 (1936). Failure to blow the whistle as required by Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190) cannot be considered as the proximate cause of a collision with a person who is on or near the tracks when the person is aware of the train’s approach. McPhail v. Atlantic Coast Line R.R., 93 Ga. App. 599, 92 S.E.2d 558 (1956). When an injured party was fully aware of the train’s approach as a matter of fact, negligence in failing to give warning of its presence under Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190) is no part of the proximate cause of the injury. Southern Ry. v. Lambert, 106 Ga. App. 691, 128 S.E.2d 87 (1962). No proximate cause where front end of train has passed before collision. - After the front end of the train has passed and the impact between the cars and the automobile is not immediate, the failure to perform statutory duty of blowing the whistle and ringing the bell is not the proximate cause of the collision. Pollard v. Clifton, 62 Ga. App. 573, 9 S.E.2d 782 (1940). Unobstructed view of tracks does not mean party negligent. - A person in going upon a railroad crossing is not guilty of negligence, as a matter of law, in not seeing an approaching train, where the train failed to give the crossing alarm required by law, although before going on the crossing the person had an unobstructed view of the approach of the train for at least a half mile. Atlanta & W.P.R.R. v. McCord, 54 Ga. App. 811, 189 S.E. 403 (1936). When recovery may be allowed despite lack of care by traveler. - Though a traveler may not observe that amount of care and diligence which would be exercised under like circumstances by an ordinarily prudent person, the traveler is not necessarily precluded from recovering for injuries to the traveler’s person received on the crossing if, after it is apparent that the engineer of the company is disobeying the provisions of the

traveler’s, the traveler then exercises ordinary care and diligence in endeavoring to escape the consequences of the company’s negligence. Comer v. Barfield, 102 Ga. 485, 31 S.E. 89 (1897); Macon, D. & S.R.R. v. McLendon, 119 Ga. 297, 46 S.E. 106 (1903); Louisville & N.R.R. v. Hames, 135 Ga. 67, 68 S.E. 805 (1910); Wrightsville & T.R.R. v. Floyd, 17 Ga. App. 461, 87 S.E. 688 (1916). Party using crossing may assume railroad complying with law. - A party using a public crossing has a right to assume that the railroad’s employees will obey the law requiring them to give warning before moving train toward crossing and will use reasonable care in avoiding injuring to that party. Southern Ry. v. Florence, 81 Ga. App. 1, 57 S.E.2d 856 (1950). Automobile approaching slowly does not excuse negligence by engineer. - Mere fact that a person approaching a railroad crossing in an automobile is going at such a slow rate of speed that the person could easily stop the automobile within a few feet would not authorize or justify the engineer approaching the crossing to assume that the automobile would stop before it reached the crossing, where it does not appear that the engineer knew of the presence of the automobile. Atlanta & W.P.R.R. v. McCord, 54 Ga. App. 811, 189 S.E. 403 (1936). Persons Protected Section applies to protect person standing on track. - The protection of life and property on the highway where it was crossed by a railroad track is within the purpose of this section; and whether a person on the crossing is in actual motion or is temporarily standing does not make two such distinct situations that the section applied wholly for the protection of persons in the one and not at all for those in the other. Central of Ga. Ry. v. Motz, 130 Ga. 414, 61 S.E. 1 (1908). Section applies to protect railroad employees. - The fact that the injured party was also an employee of the railroad did not make the employee any less entitled to the protection of this section and § 46-8-191 than any one else. He is, so far as the duty of the other employees operating the cars across the crossing was concerned, a member of the public entitled to the fullest protection afforded by the law and their

Persons Protected (Cont’d) consequent duty to keep a constant and vigilant lookout. Atlantic Coast Line R.R. v. Strickland, 87 Ga. App. 596, 74 S.E.2d 897 (1953). No duty owed to driver stopped far away or to driver driving too fast. - When the engine of a train which is barely moving has already gone over the crossing and is six lengths away, the failure of the engineer to ring the bell or blow the air whistle in approaching said crossing does not violate a duty to the driver of an automobile who is seated in a car stopped at a filling station 200 yards distant or to a driver who knows of such crossing and that it may be occupied by a train, and who is driving at a rate of speed which prevents the driver from stopping after the driver discovers the presence of the freight cars on the crossing. Pollard v. Clifton, 62 Ga. App. 573, 9 S.E.2d 782 (1940). Duty of care to trespassers. - Though the person upon the line of the railway, not on the crossing, at a point within 50 feet of the crossing, if there without license or permission, would be a trespasser, nevertheless the duty is on the engineer to maintain a lookout and exercise due care not to injure the person. Atlantic Coast Line R.R. v. Fulford, 159 Ga. 812, 127 S.E. 274 (1925); Simmons v. Atlanta & W.P.R.R., 46 Ga. App. 93, 166 S.E. 666 (1932). Mere failure to give signals not negligence per se to trespasser. - Failure of an engineer to give the required signals would be negligence as to any person on a public road crossing over a railroad, and as to any person within 50 feet of the crossing; but would not be negligence as to a trespasser upon the railroad track who was more than 50 feet from the crossing. Mere failure to comply with Ga. L. 1918, p. 212, UU 2-4 (see O.C.G.A. § 46-8-190) and nothing more would constitute only ordinary or simple negligence. Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932). Crossings Applicability of section to public road crossings only. - Crossings of public roads only and not those of private ways are embraced in former Code 1873, § 708. Georgia

R.R. v. Cox, 61 Ga. 455 (1878) (decided under former Code 1873, § 708). The provisions of former Code 1882, § 708 have no application except to crossings where a public road established pursuant to law crosses the track of a railroad, and consequently the statutory duties are not incumbent upon an engineer when approaching the intersection with a railroad of a road which, though to a greater or less extent used by the public, has never been established as a public road in the manner pointed out by law. Comer v. Shaw, 98 Ga. 543, 25 S.E. 733 (1896) (decided under former Code 1882, § 708). Meaning of term ‘‘public road’’. - The term ‘‘a public road’’ or ‘‘highway’’ is not confined to one which had been laid out and established by the county authorities by regular proceedings, but includes highways in any of four ways: (1) by legislative action; (2) by formal proceedings by the county authorities establishing it; (3) by dedication; and (4) by prescription. Atlanta & W.P.R.R. v. Wise, 58 Ga. App. 176, 198 S.E. 126 (1938); Georgia S. & Fla. Ry. v. Blanchard, 121 Ga. App. 82, 173 S.E.2d 103 (1970). What is a road crossing. - A road crossing, was the crossing by a railroad of a public highway, not only used but maintained as such by the proper authorities having the same in charge. Atlantic Coast Line R.R. v. Bunn, 2 Ga. App. 305, 58 S.E. 538 (1907). Applicability to grade crossings only. - Former Code 1882, § 708 was applicable to grade crossings only and not to public roads passing above or beneath the track of a railroad. McElroy v. Georgia C. & N. Ry., 98 Ga. 257, 25 S.E. 439 (1896) (decided under former Code 1882, § 708). No application to overhead trestle or bridge. - This section is not applicable to a crossing where the railroad-tracks cross a public highway by means of a trestle over the public road. Barton v. Southern Ry., 132 Ga. 841, 64 S.E. 1079, 22 L.R.A. (n.s.) 915, 16 Ann. Cas. 1232 (1909); Central of Ga. Ry. v. Tapley, 145 Ga. 792, 89 S.E. 841 (1916). Code section not applicable to footway crossing track. - Former Code 1895, § 2222 did not apply to footway crossing track in town although a harmless reference thereto in a charge was not a cause for reversal. Central of Ga. Ry. v. Bond, 114 Ga. 913, 41 S.E. 70 (1902) (decided under

former Code 1895, § 2222). Code section not applicable to farm road. - Where a crossing had been in existence at least 35 years, was originally established and used to afford ingress and egress to those farming the land in the bottoms to the west of the railroad, was a ‘‘farm road’’ or a ‘‘field road,’’ and it does not appear that the road as originally used, which called the crossing into existence, was now being maintained, or that such road ever acquired the character of a public road, the road was not a public crossing. Atlanta & W.P.R.R. v. Wise, 58 Ga. App. 200, 198 S.E. 126 (1938). Code section not applicable to municipal crossings. - Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190) does not apply to crossings within municipalities. Georgia R.R. & Banking Co. v. Cook, 94 Ga. App. 650, 95 S.E.2d 703 (1956). The requirement as to blowing the whistle upon approaching a crossing had no application to a crossing in an incorporated city, town or village. Luke v. Powell, 63 Ga. App. 795, 12 S.E.2d 196 (1940). Whistle may be needed in exercise of ordinary care. - While the Georgia blow-post law does not apply in municipalities, so that a failure to blow the whistle for a crossing therein is not a violation of the statute and thus negligence per se, nevertheless, such use of the whistle may be required in the exercise of ordinary care. Atlantic Coast Line R.R. v. Key, 196 F.2d 64 (5th Cir. 1952). Failure to blow the whistle within a municipality may in certain circumstances constitute negligence as a matter of fact if it is the only way in which an adequate warning may be given. Georgia R.R. & Banking Co. v. Cook, 94 Ga. App. 650, 95 S.E.2d 703 (1956). Need to prove public road status. - In any case in which the inquiry is material the method in which a public road was established - whether by legislative enactment, by order of the county authorities, by prescription, or by dedication - must be shown. Georgia S. & Fla. Ry. v. Blanchard, 121 Ga. App. 82, 173 S.E.2d 103 (1970). Definite proof of public road status may be waived. - Where a witness, without objection, testifies that a certain road is a public road, and no effort is made to test the sources of the witness’s information or question the witness’s statement that the road in

question is in fact a public road, it must be assumed that more specific and definite proof of the fact that the road is lawfully a public road was waived. Georgia S. & Fla. Ry. v. Blanchard, 121 Ga. App. 82, 173 S.E.2d 103 (1970). Practice and Pleading 1. In General Question of comparative negligence is exclusively jury question. - Question of comparative negligence on the part of the parties is exclusively a jury question and not a question that may be determined by the court as a matter of law. Southern Ry. v. Haynes, 293 F.2d 291 (5th Cir. 1961). Sufficiency of complaint. - In action for injuries sustained in collision between plaintiff ’s automobile and defendant railway company’s backing freight train at street grade crossings, allegations of complaint as to engineer’s failure to ring the bell or keep a lookout made a jury question as to the proximate cause of the plaintiff ’s injury and damage, and were not subject to demurrer (now motion to dismiss) as stating no cause of action. Southern Ry. v. Florence, 81 Ga. App. 1, 57 S.E.2d 856 (1950). Complaint which alleges that railroad company was negligent in failing to signal for crossing by the blowing of a train whistle, and in not flagging the crossing or having such other warning at the crossing as the exercise of ordinary care would require, is sufficient to state a cause of action as against a general demurrer (now motion to dismiss) for the death of plaintiff ’s husband in a collision with a train. Jones v. McCranie, 92 Ga. App. 505, 88 S.E.2d 849 (1955). 2. Instructions Judge not to specify what acts constitute negligence. - Trial court errs in charging the jury that, if the bell on the train was not rung as the train approached the crossing, the railroad would be guilty of negligence per se even though the engineer gave the signal by whistle as required by Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190), since a judge is prohibited from telling a jury what acts do or do not constitute negligence, unless the act has been declared by law to be negligence. Atlantic Coast Line R.R. v.

Practice and Pleading (Cont’d) 2. Instructions (Cont’d) Studdard, 99 Ga. App. 609, 109 S.E.2d 523 (1959). Jury may be charged that violation of statute is negligence. - It was error to leave to the jury the question of whether or not a violation of a part of Ga. L. 1947, p. 479, § 1 (see O.C.G.A. § 46-8-190) would constitute negligence by instructing that the plaintiff could recover under this allegation of negligence only if the jury found as a fact that the omission was negligence, when that provision requires a certain standard of care and the plaintiff requested a charge to the effect that failure to do the act required by the statute would constitute negligence per se which, if existing, and if the proximate cause of the injury, would entitle plaintiff to recover. Williams v. Southern Ry., 99 Ga. App. 503, 109 S.E.2d 343 (1959). Instruction where injury within corporate limits. - In view of Ga. L. 1918, p. 212, §§ 2-4 (see O.C.G.A. § 46-8-190) the court did not err in refusing to charge that, where the injury was within the corporate limits, if the railroad company either blew its whistle or tolled its bell there was sufficient compliance with those provisions but if the whistle were blown it would not be necessary to toll the bell, and vice versa. Elberton & E.R.R. v. Thornton, 32 Ga. App. 259, 122 S.E. 795 (1924). It is harmless error to charge Ga. L. 1918, p. 212, §§ 2-4 (see O.C.G.A. § 46-8-190) where action is for injury within the corporate limits of city, and those provisions contains matter inapplicable to such actions. Western & A.R.R. v. Mathis, 32 Ga. App. 308, 122 S.E. 818 (1924). Error to charge that engineer must exercise the engineer’s faculties effectively. - Charge that engineer must exercise the en-

gineer’s faculties of sight and hearing so that they will be effective is erroneous; Ga. L. 1918, p. 212, §§ 2-4 (see O.C.G.A. § 46-8-190) makes no such requirement. Elberton & E.R.R. v. Thornton, 32 Ga. App. 259, 122 S.E. 795 (1924). Error to charge on failure to control engine. - It is not necessary for the engineer to check and keep checking the engine so as to stop in time if any person were crossing the track, hence, it is error for the court to charge that failure to have the engine so under control, amounted to negligence as a matter of law. Louisville & N.R.R. v. Faust, 30 Ga. App. 310, 117 S.E. 761 (1923). Use of words ‘‘to instruct’’ not harmful. - A charge to the jury that the law requires a railroad company to erect a blow post ‘‘to instruct,’’ rather than the statutory ‘‘to indicate,’’ the direction of such crossing was a mere inaccuracy and not a substantial misstatement of the meaning those provisions. Western & A.R.R. v. Bennett, 47 Ga. App. 629, 171 S.E. 187 (1933). No error in incorrect reference to section number. - The fact that the trial court in its charge referred to Code 1933, § 94-504 (now repealed) as dealing with the ‘‘blow post law’’ when it should have referred to this section could not have confused the jury as the court charged the language of these sections. Western & Atl. R.R. v. Hart, 95 Ga. App. 810, 99 S.E.2d 302 (1957). No error in refusing to charge section where section complied with. - Where it is proved that the defendant blew the whistle of its locomotive, it is not error for the court to fail to charge the portion of Ga. L. 1918, p. 212, §§ 2-4 (see O.C.G.A. § 46-8-190), relative to the manner of approach within the corporate limits of a town. Hines v. Owens, 27 Ga. App. 373, 108 S.E. 478 (1921).

RESEARCH REFERENCES Am. Jur. 2d. - 65 Am. Jur. 2d, Railroads, §§ 258, 259, 261, 263, 271. C.J.S. - 74 C.J.S., Railroads, §§ 764, 816 et seq., 819, 820. ALR. - Expense of flagmen, gates, and automatic signals as items of compensation to railroad company across whose tracks a highway is laid, 4 ALR 137.

Negligence in leaving live locomotive unattended, 24 ALR 124. Liability of railroad company for injury to livestock frightened by headlight, 29 ALR 1546. Running past stop signal as wanton or willful misconduct rendering railroad com-

pany liable for injury to trespasser, 41 ALR 1354. Liability for accident at point where highway leads to, but does not cross, railroad tracks, 47 ALR 863. Infrequent use of crossing by railroad company as affecting its duty or liability to traveler at crossing, 52 ALR 751. Duty of driver whose view at railroad crossing is obstructed to leave vehicle in order to get an unobstructed view before crossing, 56 ALR 647; 91 ALR 1055. Failure or delay in sounding crossing signals as affecting liability of railroad company to persons not crossing nor about to cross track, 66 ALR 811. Applicability to car or engine driven on rails by motive power other than steam, of statute relating to crossing signals or other precautions at approach to crossing, 73 ALR 105. Responsibility for accident at railroad crossing as affected by absence, improper location, or insufficiency of signs warning approaching travelers of presence of crossing, 93 ALR 218. Liability of railroad company for injury or damage due to road vehicles striking signal or warning device installed at crossing, 99 ALR 287.

Conduct of operator of automobile at railroad crossing as gross negligence, recklessness, etc., within guest statute, 143 ALR 1144. Speed of train, locomotive, or railway car at highway crossing, as negligence, 154 ALR 212. Contributory negligence of one attempting to cross in front of an observed approaching train, as affected by increase of its speed, 154 ALR 512. What amounts to negligence of gate tender at railroad crossing, 160 ALR 731. Duty of railroad toward persons using private crossing or commonly used footpath over or along railroad tracks, 167 ALR 1253. Railroad lookout statutes as applicable to switching operations, 1 ALR2d 621. Duty of railroad company to maintain flagman at crossing, 24 ALR2d 1161. Intoxication of person injured or killed as affecting applicability of last clear chance doctrine, 26 ALR2d 308. Railroad’s duty to children walking longitudinally along railroad tracks or right of way, 31 ALR2d 789. Railroad’s liability for crossing collision as affected by fact that train or engine was backing or engine was pushing train, 85 ALR2d 267.