Atlanta v. Smith
| Decision Date | 15 June 1931 |
| Docket Number | No. 21051.,21051. |
| Citation | 43 Ga.App. 457,159 S.E. 298 |
| Court | Georgia Court of Appeals |
| Parties | ATLANTA, B. & C. R. CO. v. SMITH et al. |
Syllabus by the Court.
Questions of diligence and negligence, including contributory negligence, lie peculiarly within the province of the jury, and the courts will decline to solve them as a matter of law except in plain and indisputable cases. In the exercise of this function the jury is the proper tribunal to determine also the question of proximate cause, and to ascertain what negligence as well as whose negligence should be said to have produced an injury the cause of which is a matter of controversy upon such grounds.
Syllabus by the Court.
As against a general demurrer, the petition sufficiently, showed negligence on the part of the defendant railroad company in failing to keep the street crossing in good order, and that such negligence was the cause of the damage to the plaintiffs' automobile.
Syllabus by the Court.
The grounds of the defendant's special demurrer are treated as abandoned. The petition set forth a cause of action, and the general demurrer was properly overruled.
Error from Superior Court, Crisp County; A. J. McDonald, Judge.
Suit by W. L. Smith and another against the Atlanta, Birmingham & Coast Railroad Company. Judgment for defendant, and plaintiffs bring error.
Affirmed.
W. L. and John R. Smith sued Atlanta, Birmingham & Coast Railroad Company, alleging that they were the owners of an automobile, and that while one of them was driving it across the track of the defendant on a public street in the city of Cordele, the automobile was injured by reason of certain defects in the crossing, and that because of the defendant's negligence in failing to keep the crossing in good order, the defendant was liable to the plaintiffs for the damage thus sustained. General and special demurrers were filed by the defendant, and were renewed from time to time as the petition was amended. The demurrers were finally overruled, and the defendant excepted.
The petition as amended alleged in substance the following facts: The defendant's tracks crossed the street on a fill 10 or 12 feet high above the level of the street. The fill was about 22 feet wide and extended along the street for a distance of about 60 feet in each direction, and the approach to the tracks thereon was at an ascending grade of approximately 35 degrees. The condition of the tracks on the fill could not be ascertained or seen from the level of the street. The driver of the automobile was operating the same in a careful and cautious manner, and was unable to discover the condition of the tracks until too late to stop the car before it passed over the first or the nearest rail in the path of the vehicle. After the front wheels had crossed over this rail, the car fell upon the rail as it protruded some 10 or 12 inches above the ground, with the result that the motor, frame, transmission, and "underparts" of the car were struck and damaged, as described in the petition. The defendant was negligent In the failure to keep the track in a safe condition of repair, in that it had allowed sand and dirt to wash from under the rails until they were exposed above the ground to such an extent that the automobile could not "safely pass over the said track without injury to the motor, frame, chassis, and underparts of said car." The driver had the automobile under perfect control and was operating the same at a speed of not exceeding 15 miles per hour. "He was not familiar with said crossing and did not see the raised tracks until he struck them, which caused the injury above set out, and if the said defendant had maintained said crossing in a reasonable and convenient manner, said car would havepassed over said crossing without any Injury and damage to your petitioners."
Brandon & Hynds, of Atlanta:, and Jay & Garden, of Fitzgerald, for plaintiffs in error.
W. H. Dorris and D. C. Browder, both of Cordele, for defendant in error.
BELL, J. (after stating the...
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