Brinson v. Davis, (No. 15290.)

• Decision Date: 15 April 1924
• Docket Number: (No. 15290.)
• Citation: 32 Ga.App. 37,122 S.E. 643
• Parties: BRINSON. v. DAVIS, Agent, etc.
• Court: Georgia Court of Appeals

32 Ga.App. 37

122 S.E. 643

BRINSON.

v.DAVIS, Agent, etc.

(No. 15290.)

Court of Appeals of Georgia, Division No. 1.

April 15, 1924.

(Syllabus by the Court.)

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.

This is a suit by E. H. Brinson against the Director General of Railroads, operating the Atlanta & West Point Railroad, to recover damages for personal injuries alleged to have been received in the following manner: On the night of November 21, 1919, about 9 o'clock T. L. Cook invited plaintiff to ride with him in his automobile to the city of Atlanta. Plaintiff accepted Cook's invitation and they began their journey to the city, proceeding along Ashby street, which crossed a railroad track used by the Atlanta & West Point Railroad. Cook, the driver of the automobile, approached this crossing, which was a public crossing within the city limits, at a rate of about 10 miles per hour, and upon reaching the crossing collided with a train of freight cars, which had been stopped by the defendant on the crossing, thereby upsetting the automobile, and causing the plaintiff's injuries. The petition alleged that the defendant was negligent in the following particulars: (1) In maintaining an arc light over the right of way of the railroad in such a position as to obstruct and blind the view of plaintiff, and others using the street, of trains upon the crossing; (2) in illegally obstructing the crossing for a period of about 30 minutes, in violation of a valid municipal ordinance of the city of Atlanta; (3) in failing to maintain, at the crossing a flagman, gate, electric bell, or other signal to warn plaintiff and other persons, when approaching the crossing, of trains upon, approaching, and crossing over the same; and (4) in failing to toll a bell or to give some other signal or to have a watchman at the crossing to warn plaintiff and other persons using the same that a trains of cars was upon the crossing.

The court dismissed the petition on general demurrer, and the plaintiff excepted.

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...