Barton v. Southern Railway Co.

Evans, P. J. 1. The first ground of negligence alleged is the failure on the part of the servants of defendant in charge of the train to observe the blow-post law, as embodied in the Civil Code, §2222. In the ease of McElroy v. Georgia, C. & N. Ry. Co., 98 Ga. 257 (25 S. E. 439), it was held that this section of the code had no application “where the track of the railway company crossed the public highway upon a bridge or trestle above the latter.” This ruling was by a divided court, and the plaintiff asks us to review and overrule the ruling there made. We are satisfied that the decision of the majority in that case was correct, and adhere to the ruling made by them [843] 2. But it is also alleged and contended, that, independently of" the statutory duty imposed by the Civil Code, §2222, the obvious danger to the constantly passing public along this much traveled, highway, of passing trains frightening horses, and the circumstances of the situation which prevented the public from observing-the approach of a train unless heralded by whistle or other signal,, raised a duty upon the railroad company, in the exercise of ordinary care, to warn the public by proper signals of the approach of a train to this place of constant and obvious danger. The negligence charged against the railroad company is not that the train, was run at an unusual rate of speed, or operated in such a manner-as to produce unusual or unnecessary noises, or that the railroad, company was negligent in constructing its track. The defendant’s; negligence is alleged to consist in running its train, without a. signal or other precaution, over a trestle which spanned a much-traveled highway, and which from the configuration of the ground' prevents a traveler driving a team on such highway, on approaching the passageway under the trestle, from seeing or hearing the. train as he nears the span over the highway. There can be no. doubt that the passing of a railroad above or beneath a highway,, instead of at grade crossing, reduces the chances of injury to travelers along the highway by the running of the train. Such crossings are to be encouraged in order to secure the safety of travel against the perils of a grade crossing. The difference between, these two kinds of crossings is so radical that it does not stand to reason that the law will hold a railroad company to the same exactness of responsibility in each case. At grade crossings the-traveler on the highway and the railroad company enjoy a common privilege on the highway itself, and each must use such privilege with due regard to the safety and rights of the other. This obligation requires the railroad company, in approaching a grade-, crossing, even in the absence of a positive statute to that effect, to exercise proper precautions to prevent injury to a traveler on. the crossing, or who is about to cross, or who has just crossed.. Where a railroad track crosses a highway on a trestle or bridge, it. does not share with the traveler in the common use of the.highway below. We can see no difference between the basal elements of liability of a railroad company incurred by its train frightening horses of travelers on highways parallel to its track,. [844] and in passing across an overhead bridge. A railroad company has the right to make all the noises incident to the movement and working of its engines and cars, and to give the usual and proper signals of danger, and will not be liable for injuries occasioned by horses driven upon a parallel highway taking fright at such noises, if it exercises such right in a lawful and reasonable manner. However, a railroad company is under tlie duty to so operate its cars as not unnecessarily to interfere with the rights of individuals traveling upon the highway, or to endanger such travel by unnecessary noises tending to frighten horses. Ga. R. Co. v. Carr, 73 Ga. 557. The plaintiff attempts from the pleaded facts to raise a duty on the railroad company to warn a highway traveler of the approach of a train to the trestle over the highway, arising out of the special environments of the situation. In other words, it is admitted that the railroad company was running its train at a proper speed without unnecessary noises over a track, against the proper construction of which nothing is averred, and its liability for frightening the plaintiff’s horses is based solely on a failure to signal the approach of the train to the crossing. The railroad company is under no duty to warn travelers on a parallel highway that it intends to use its track (Ga. R. Co. v. Carr, supra); and for the same reason it is under no duty to give notice to travelers using a highway over which its track is constructed that it intends to use its bridge which spans the highway. The law permits a railroad company to use its roadbed and bridges by running its trains over them in a manner customary and usual with railroad trains. If it runs its trains at a proper speed, and with no unusual or unnecessary noises, it is not liable for an injury which a traveler receives from a horse frightened by a train in passing over an overhead bridge. Favor v. Boston & L. R. Corp., 114 Mass. 350 (19 Am. R. 364). The defendant’s demurrer should have been sustained. Since the question made in the cross-bill of exceptions is controlling upon the case as a whole, and the judgment therein is reversed, there is no necessity for considering the errors alleged in the main bill of exceptions. Gay v. Gay, 108 Ga. 739 (32 S. E. 846). Judgment reversed on the cross-bill of exceptions. Main bill of exceptions dismissed. All the Justices concur.