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ANDERSON v. SOUTHERN RAILWAY COMPANY.
34555.
Action for damages. Before Judge Nichols. Floyd Superior Court. January 10, 1953.
FELTON, J.
The petition showed on its face that the plaintiff's injuries were proximately caused by his own negligence; therefore the court did not err in sustaining the general demurrer thereto and in dismissing the action.
R. C. Anderson sued Southern Railway Company for damages arising out of a collision between the plaintiff's automobile and a train of the defendant, allegedly due to the defendant's negligence. The petition alleged in substance: that on May 3, 1951, at about 10 p.m., the plaintiff was driving his automobile in a westerly direction (ever and upon what is known as the Furnace Road, a paved public road and highway in Floyd County, Georgia; that, as the plaintiff was operating his automobile at a speed of 35 to 40 miles per hour upon such road, his vision was attracted to another automobile in front of him on the road, its rear lights or reflectors being visible to him; that as he approached such vehicle he saw that it was stopped, facing in the same direction and in the same lane of traffic as he was traveling, with its front lights turned off; that the plaintiff, who was unfamiliar with said road, kept his vision directed on said vehicle, fearing it might be preparing to turn to the left or back up; that as the plaintiff approached to within 10 or 12 feet of the rear of said vehicle, he turned his automobile to the left to go around the vehicle, when suddenly and without warning and notice he was confronted by a string of box cars, they being part of a train operated by the defendant, parked on the public crossing 25 to 30 feet in front of him and completely blocking the passage of traffic along said Furnace Road; that the plaintiff immediately applied the brakes of his automobile, but, on account of the proximity of the train, was unable to stop and avoid a collision with it, and he crashed into and under a box car of the defendant's train, which was across and completely blocking the road and which was unlighted and of a color that blended with the darkness so effectively as to give the plaintiff no notice of its presence at a distance within which he could have stopped his car before colliding with it; that the box cars were dark in color, blending with the night and were not lighted, and there were no other lights in the immediate area, and for said reasons the defendant's box cars were not visible to the plaintiff until he was too close upon them to stop; that the approaches to such railroad crossing on the eastern side were not marked, there being no letters, words, signs, symbols or marks on the sides of or across the road, and there were no cross-arms to warn the plaintiff, who was approaching from the east, of the presence either of the train or of the crossing
It is contended by the defendant that the plaintiff was negligent in the particulars alleged in the petition, and that such negligence was the proximate cause of the collision and the plaintiff's damages. The plaintiff alleged that he was traveling at a speed of 35 to 40 miles per hour, that his vision was attracted to a stopped automobile in front of him on the road, that he kept his vision directed on such automobile, that, as he approached to within 10 or 12 feet of the rear of the stopped automobile, he turned his automobile to the left to go around such automobile, when he was confronted by the defendant's train parked 25 or 30 feet in front of him. Construing the petition most strongly against the plaintiff on demurrer, it alleges that the plaintiff was traveling at a speed of 35 to 40 miles per hour, and that without reducing his speed and without taking his vision from the stopped automobile to look ahead of him, he drove around such stopped automobile and thereupon became confronted with the defendant's train. A plaintiff is not entitled to recover if his injuries were caused by his own negligence, or if by the exercise of ordinary care he could have discovered the defendant's negligence and could have avoided the consequences thereof. Code 105-603. While questions of negligence, comparative negligence, and proximate cause are ordinarily questions for a jury, if a petition shows on its face that the plaintiff's own negligence proximately caused his injuries, the case will be resolved in favor of the defendant on demurrer. Central of Georgia Ry. Co. v. Tapley, 145 Ga. 792, 793 (5, 5a) (89 S. E. 841); Haddon v. Savannah Electric & Power Co., 36 Ga. App. 183 (136 S. E. 285); Athens Ry. & Elec. Co. v. McKinney, 16 Ga. App. 741, 746 (86 S. E. 83). This is such a case. The stopped automobile did not suddenly appear before the plaintiff. He knew of its presence and the fact that it was stopped. Under such facts the plaintiff, in passing the stopped automobile at a speed of 35 to 40 miles per hour, and without taking his vision from such automobile to ascertain or attempt to ascertain that the way ahead was clear and safe for passing, was not in the exercise of ordinary care and such negligence proximately caused his injuries. The fact that the plaintiff was unfamiliar with the road and did not know for what reason the stopped automobile had stopped did not relieve him of the duty of using ordinary care in ascertaining or attempting to ascertain whether it was safe to pass the stopped automobile under the circumstances alleged.
As to the allegation that the defendant was negligent in "failing to discover and extricate plaintiff and his car from the dangerous and precarious position resulting from said collision before suddenly starting said train and dragging plaintiff's car, with him trapped in it, 10 or 20 feet, further injuring and damaging plaintiff and his car," the petition does not allege facts showing that the defendant knew of the situation and the plaintiff's position of peril or in the exercise of ordinary care should have known thereof.
The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.
Matthews, Maddox & Bell, contra.
George Anderson, E. J. Clower, for plaintiff in error.
DECIDED MAY 13, 1953.
Saturday May 23 03:57 EDT


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