O.C.G.A. § 46-8-191 (2019)

Annotations

JUDICIAL DECISIONS Analysis General Consideration Negligence 1. In General 2. Other Duties 3. Defenses Persons Protected Pleading and Practice General Consideration 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 apply only where injury is 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 this requirement is to notify persons intending to pass over the crossing of the approach of the train. Chandler v. Pollard, 64 Ga. App. 122, 12 S.E.2d 190 (1940). Gasoline motor bus operated on tracks not ‘‘locomotive’’. - Term ‘‘locomotive’’ as used in former Code 1933, §§ 94-505 and 94-507 (see O.C.G.A. §§ 46-8-170 and 46-8-191) did not apply to gasoline motor bus operated by railroad on its tracks. Gainesville M.R.R. v. Allen, 72 Ga. App. 736, 35 S.E.2d 12 (1945). Applicability of section to backing train. - Former Code 1933, § 94-507 (see O.C.G.A. § 46-8-191) did not mean that the engineer of a backing train was not required to keep a lookout. The word ‘‘ahead’’ must be construed as relating to the direction in

which the train is moving, rather than to the direction in which the pilot on the engine was pointing. Atlanta, B. & C.R.R. v. Davis, 53 Ga. App. 814, 187 S.E. 148 (1936). Cited in 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); Pollard v. Gorman, 52 Ga. App. 127, 182 S.E. 678 (1935); Bazemore v. Powell, 54 Ga. App. 444, 188 S.E. 282 (1936); Southern Ry. v. Maddox, 63 Ga. App. 508, 11 S.E.2d 501 (1940); Powell v. Jarrell, 65 Ga. App. 453, 16 S.E.2d 198 (1941); Southern Ry. v. Harris, 123 F.2d 7 (5th Cir. 1941); Callaway v. Cox, 74 Ga. App. 555, 40 S.E.2d 578 (1946); Cosper v. Atlantic Coast Line R.R., 85 Ga. App. 683, 69 S.E.2d 886 (1952); Hatcock v. Georgia N. Ry., 90 Ga. App. 533, 83 S.E.2d 329 (1954); Atlantic Coast Line R.R. v. Grimes, 99 Ga. App. 774, 109 S.E.2d 890 (1959); Shuler v. Southern Ry., 106 Ga. App. 523, 127 S.E.2d 471 (1962); 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); Brown v. Seaboard Coast Line R.R., 405 F.2d 601 (5th Cir. 1968); Nelson v. Seaboard Coast Line R.R., 122 Ga. App. 521, 177 S.E.2d 799 (1970); Johnson v. UPS, 616 F.2d 161 (5th Cir. 1980). Negligence 1. In General Failure to ring bell is negligence per se. - Allegations of negligence on part of a railway company that through its engineer it failed

to keep a proper lookout ahead of the train and failed to ring the bell, sound the whistle or horn, or otherwise give motorists any warning of the approach of the train was negligence per se. Southern Ry. v. Grant, 93 Ga. App. 185, 91 S.E.2d 99 (1956). Where the engineer in charge of the train did not toll the bell of the locomotive as the train approached a crossing within the corporate limits of a municipality, in violation of the requirements of former Code 1933, § 94-507 (see O.C.G.A. § 46-8-191), this failure, where there was a causal connection between such failure and the collision at the crossing, was actionable negligence on the part of the engineer. Luke v. Powell, 63 Ga. App. 795, 12 S.E.2d 196 (1940). Blowing whistle does not excuse failure to ring bell. - Under former Code 1933, § 94-507 (see O.C.G.A. § 46-8-101), upon approaching a crossing located within the corporate limits of a city, town, or village, the engineer of a train was required to constantly toll the bell of the locomotive, and was not relieved from compliance with this requirement by blowing the whistle of the engine, and where there was a causal connection between the failure of the engineer to so ring the bell and an injury to a traveler upon the crossing, such failure constituted actionable negligence against the railroad company. Chandler v. Pollard, 64 Ga. App. 122, 12 S.E.2d 190 (1940). Failure to ring bell as negligence. - Failure to ring bell under certain circumstances may constitute negligence in fact but not negligence per se. Georgia, A., S. & C. Ry. v. Rutherford, 104 Ga. App. 41, 121 S.E.2d 159 (1961). Timing of whistle contested. - Material question of fact concerning timing of whistle existed to preclude summary judgment against defendant railroad for failure to ring its bell. Biggers ex rel. Key v. Southern Ry., 820 F. Supp. 1409 (N.D. Ga. 1993). But see CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998), aff ’d, 182 F.3d 788 (11th Cir. 1999). Train exceeding speed limit as negligence. - Where train is run at crossing at rate of speed in excess of that limited by ordinance it is negligence per se, and the railroad company is liable if such speed is the proximate cause of injury. Central of Ga. Ry. v. Barnes, 46 Ga. App. 158, 167 S.E. 217 (1932).

2. Other Duties

Compliance with subsection (a) does not relieve engineer from other duties. - Subsection (b) of former Code 1933, § 94-507 (see O.C.G.A. § 46-8-191) points out that the duty placed upon the engineer by subsection (a) did not relieve the engineer or railroad company from certain other duties therein specified. Montgomery v. Southern Ry., 78 Ga. App. 370, 51 S.E.2d 66 (1948). Exercise of ordinary care by employees controlling train movements. - Independently of the provisions of Ga. L. 1918, p. 212 there rests upon the railroad company a duty to exercise ordinary care, and a failure of the servants of a railroad company operating its train to give any signal by bell, whistle, or otherwise, or to check the speed of the train on approaching a public crossing, might, in the opinion of the jury, constitute actual negligence in the light of the surrounding facts and circumstances. Thompson v. Powell, 60 Ga. App. 796, 5 S.E.2d 260 (1939). Railroad company and its employees engaged in operation of trains must exercise ordinary care in so controlling the movements of such trains as to avoid doing injury to persons or property which may be on a crossing within the corporate limits of cities, towns, or villages along its line. Atlantic Coast Line R.R. v. Grimes, 99 Ga. App. 774, 109 S.E.2d 890 (1959). Ordinary care may require other duties. - The requirement in former Code 1933, § 94-507 (see O.C.G.A. § 46-8-191) of certain duties of a railway company within the limits of a municipality did not relieve it from doing what ordinary care otherwise required to be done. Pollard v. Savage, 55 Ga. App. 470, 190 S.E. 423 (1937); Thompson v. Powell, 60 Ga. App. 796, 5 S.E.2d 260 (1939). Duty of railroad to anticipate presence of people at public 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 the 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). Duty of railroad to anticipate presence of people at private crossings. - Where a

Negligence (Cont’d) 2. Other Duties (Cont’d) number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of this custom, are bound on a given occasion to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet requirements of ordinary care and diligence. Western & A.R.R. v. Michael, 44 Ga. App. 503, 162 S.E. 294 (1931). 3. Defenses No liability 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 injury. Atlanta & W.P.R.R. v. McCord, 54 Ga. App. 811, 189 S.E. 403 (1936). The failure of an engineer to give signals required by former Code 1933, § 94-507 (see O.C.G.A. § 46-8-191) will not impose liability on the railroad company to a person on or near the railroad track who was either aware of the approach of the train or who, through the exercise of ordinary care, should have discovered the approach of the train. Iler v. Seaboard Air Line R.R., 214 F.2d 385 (5th Cir. 1954). No liability 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 the 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 is 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). 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). The mere fact that motorist saw an engine of the railway company with cars attached thereto and with steam up, standing on the tracks near the crossing, affords no justification for holding that as a matter of law, the motorist was so negligent in going upon the crossing as to bar a recovery from the company for personal injuries and property damage sustained in collision between the automobile and backing freight train where there is no other fact to show that the motorist had any cause to believe that the company’s servants would move the train toward the crossing without first giving a warning to the public using the crossing as required by law. Southern Ry. v. Florence, 81 Ga. App. 1, 57 S.E.2d 856 (1950). Fact that automobile is 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 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 railroad employees. - The fact that the injured party is also an employee of the railroad does not make the employee any less entitled to the protection of these sections than anyone else. The employee is, so far as the duty of the other employees operating the cars across the

crossing is concerned, a member of the public entitled to the fullest protection afforded by law and their 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. - Under Ga. L. 1918, p. 212, § 4 (see O.C.G.A. § 46-8-1912), though a 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 engineer has a duty to maintain a lookout and exercise due care not to injure the person. 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, § 4 (see O.C.G.A. § 46-8-191) and nothing more would constitute only ordinary or simple negligence. Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932). Pleading and Practice 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 en-

gineer’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). Question of duties constituting ordinary care is for jury. - In an action against a railroad company for injuries received by a person lawfully upon a railroad crossing, the question of what such person must or must not do in order to free oneself of guilt of lack of ordinary care constituting the proximate cause of the person’s injury is a question for the jury. Atlantic Coast Line R.R. v. Grimes, 99 Ga. App. 774, 109 S.E.2d 890 (1959). Statement of correct law is charge as to proper control. - Charge that one who operates a locomotive engine or drives a motor vehicle at such speed that one cannot bring the same to a stop within the distance dictated by the voice of ordinary care does not have immediate or proper control of the conveyance, whatever be its nature, states the correct principle of law as to what is proper control. Atlantic Coast Line R.R. v. Grimes, 99 Ga. App. 774, 109 S.E.2d 890 (1959). Use of entire contents of section proper even where part inapplicable. - Where court’s charge quoted the entire contents of former Code 1933, § 94-507 see O.C.G.A. § 46-8-191) with reference to a railroad company’s duties as to operation of its trains in incorporated municipalities, fact that a part of it was inapplicable to the issues was not ground for reversal unless calculated to mislead or erroneously affect the jury. Atlantic Coast Line R.R. v. Grimes, 99 Ga. App. 774, 109 S.E.2d 890 (1959). Charge not to state that railroad should blow whistle. - Charge which instructs the jury that they should find the defendant railroad guilty of negligence if they determined that its employees failed to blow the train whistle or horn as it approached the crossing where the collision occurred was erroneous, because since the collision occurred within the corporate limits of a town the defendant was not required by statute to blow the whistle or horn as it approached a public crossing. Western & A.R.R. v. Mansfield, 98 Ga. App. 421, 105 S.E.2d 804 (1958).

Pleading and Practice (Cont’d) Where a charge in effect states that the failure of the engineer to blow the train whistle was negligence per se and submitted to the jury the sole question as to whether such failure was the proximate cause of the collision, the charge is error. The engineer was not required by law to blow the train whistle upon approaching the crossing which lay within the corporate limits of the town. The court should have submitted to the jury for their determination the question whether the failure of the engineer to blow the train whistle under the circumstances was common law negligence. Southern Ry. v. Thompson, 96 Ga. App. 305, 99 S.E.2d 845 (1957).

Error to charge jury that section applies to gasoline motor bus. - To violate former Code 1933, § 94-507 (see O.C.G.A. § 46-8-191) is a penal offense, and penal statutes must be strictly construed; thus, the words in former Code 1933, § 94-505 (see O.C.G.A. § 46-8-170), ‘‘shall be equipped with a signal bell and a signal whistle,’’ clearly evidence that the legislative intent was to apply the provisions of this section as to ‘‘constantly tolling the bell of the locomotive’’ only to locomotives. Consequently, a trial judge commited reversible error in instructing a jury that this requirement of the statute applied to a gasoline motor bus. Gainesville M.R.R. v. Allen, 72 Ga. App. 736, 35 S.E.2d 12 (1945).

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. - Validity and construction of railroad stop statute, 2 ALR 156. Reasonableness of regulation of speed of railroad train, 20 ALR 1222. Infrequent use of crossing by railroad company as affecting its duty or liability to traveler at crossing, 52 ALR 751. 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.

What amounts to negligence of gate tender at railroad crossing, 160 ALR 731. Railroad lookout statutes as applicable to switching operations, 1 ALR2d 621. Customary or statutory signal from train as measure of railroad’s duty as to warning at highway crossing, 5 ALR2d 112. 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 liability for crossing collision as affected by fact that train or engine was backing or engine was pushing train, 85 ALR2d 267.