Decker v. State

459 S.E.2d 586, 217 Ga. App. 803, 95 Fulton County D. Rep. 2425, 1995 Ga. App. LEXIS 622

• Court: Court of Appeals of Georgia
• Decided: July 12, 1995
• Docket: A95A0579
• Status: Published

Opinions

Blackburn, Judge.

David Decker was found guilty of failing to yield to a train in violation of OCGA § 40-6-140 (a) (3) and sentenced to pay a $250 fine. This appeal followed entry of judgment and conviction.

1. In his first and third enumerations Decker challenges the sufficiency of the evidence asserting that the trial court erred in refusing to grant his motion for directed verdict of acquittal and that the evidence was insufficient to support his conviction.

The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

On January 31, 1994, Decker, while operating a tractor-trailer, collided with a train when he traversed a railroad crossing in Way-cross, Georgia, without stopping. At trial, the engineer testified that the train could have been seen from the intersection for 600 to 700 feet; that he blew the train’s horn over the length of that distance; that the train’s single beam headlight was on full-bright and operational; and that Decker swerved left and then right before crossing the tracks. Further, while the traffic light immediately beyond the crossing was green at the time of the accident, Decker testified that he proceeded through the crossing only after looking and seeing neither vehicular traffic nor a train.

OCGA § 40-6-140 (a) (3) imposes “a duty to stop at crossings if the driver could have seen the approaching train regardless of whether or not he did in fact see it. Central of Ga. R. Co. v. Leonard, 49 Ga. App. 689, 701 (176 SE 137).” Atlanta &c. R. Co. v. Armstrong, 138 Ga. App. 577, 578 (227 SE2d 71) (1976). “On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). We conclude that the trial court properly denied Decker’s motion for directed verdict of acquittal, and the jury was authorized under the standard of Jackson, supra, to find the appellant guilty beyond a reasonable doubt of the offense charged.

2. Decker also enumerates as error the trial court’s failure to charge the jury that OCGA § 40-6-140 (a) (3) “puts a duty on the operator of a motor vehicle to look, but it puts no duty on him to listen and no duty to stop unless there is a signaling device or unless the train is ‘plainly visible[,]’” citing Atlantic Coast Line R. Co. v. Hall Livestock Co., 116 Ga. App. 227, 228 (156 SE2d 396) (1967), a civil action.

This enumeration is without merit because Decker agreed to the charge the court indicated it would give as to OCGA § 40-6-140 and which was in fact given. Decker’s charges were not timely given to the court pursuant to Uniform Superior Court Rule 10.3, and the requested charge, while appropriate in the civil action in which it was given, was not adjusted to the facts of this criminal case, as the trial court held. Walker v. State, 213 Ga. App. 407, 413 (444 SE2d 824) (1994).

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.