Brinson v. Davis

• Decision Date: 15 April 1924
• Docket Number: 15290.
• Citation: 122 S.E. 643,32 Ga.App. 37
• Parties: BRINSON v. DAVIS, AGENT, ETC.
• Court: Georgia Court of Appeals

122 S.E. 643

32 Ga.App. 37

BRINSON v. DAVIS, AGENT, ETC.

No. 15290.

Court of Appeals of Georgia, First Division

April 15, 1924

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 190 S.E.2d 143

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 107 S.E.2d 566

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 91 S.E.2d 135

Syllabus by the Court.

The allegations of the petition in this case showing, as a matter of law, that the plaintiff's injuries were caused solely by the negligence or want of ordinary care on the part of the driver of the automobile in which the plaintiff was riding as a guest, the railroad was not liable, and the court did not err in sustaining the general demurrer and dismissing the case.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by E. H. Brinson against J. C. Davis, Agent, etc. Judgment for defendant, and plaintiff brings error. Affirmed.

G. N Bynum, of Atlanta, for plaintiff in error.

Dorsey Brewster, Howell & Heyman, of Atlanta, for defendant in error.

BROYLES C.J.

While it is true, as shown by the petition, that the plaintiff was a guest of the driver and owner of the automobile which collided with the defendant's train, and therefore that any negligence of the operator of the automobile is not imputable to the plaintiff, it is our judgment that the plaintiff is not entitled to recover, because the allegations of his petition show as a matter of law that his injuries were occasioned solely by the negligence or want of ordinary care of the driver of the automobile in driving his machine upon the crossing when he could not see what was upon the crossing; and that the acts of negligence alleged against the defendant did not contribute to, or concur with, the negligence of the driver in bringing about the plaintiff's injuries.

The cases cited and relied on by counsel for the plaintiff in error are distinguished by their particular facts from the case at bar. In this case the operator of the automobile did not attempt to drive over a crossing in front of a moving train or drive around a standing train, but, in the language used in the brief of counsel for the defendant in error--

"He, with the plaintiff sitting by his side, carelessly and recklessly, and, to accept his own statement, blindly and being unable to see,

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