Burnett v. Louisville & N. R. Co.
| Decision Date | 09 June 1938 |
| Docket Number | 26871,26889. |
| Citation | 197 S.E. 663,58 Ga.App. 64 |
| Parties | BURNETT v. LOUISVILLE & N. R. CO. LOUISVILLE & N. R. CO. v. BURNETT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not err in directing the verdict for the defendant.
Error from Superior Court, Gordon County; C. C. Pittman, Judge.
Suit by Herbert Burnett against the Louisville & Nashville Railroad Company for injuries sustained when the automobile which plaintiff was riding collided with defendant's freight train, wherein defendant filed a demurrer. To review a judgment for defendant, plaintiff brings error, and defendant claims error in cross-bill of exceptions.
Judgment affirmed on main bill and cross-bill dismissed.
John S Wood, of Canton, J. H. Paschall, of Calhoun, and Roscoe Pickett, of Jasper, for plaintiff in error.
Tye Thomson & Tye, of Atlanta, and J. G. B. Erwin and Chas. W Allen, both of Calhoun, for defendant in error.
1. We think the judge properly withdrew the case from the jury and directed a verdict for the defendant. While ordinarily the question whether a plaintiff is barred from a recovery by his own negligence is a question for the jury, this is one of those cases where such a conclusion should be reached as a matter of law. Without deciding whether the blocking of the crossing for longer than the time provided by the municipal ordinance could or could not have figured in the case if the allegation had been proved, the evidence failed to show that the ordinance had been violated. The evidence showed that the plaintiff was familiar with the crossing, though he stated he did not know about the incline "because he hadn't traveled the road at night." There was no evidence that it was misty or rainy, or why view was obstructed or made difficult except the incline up the tracks. Irrespectively of whether the railroad was negligent in failing to provide any or all of the safeguards contended by the plaintiff, the uncontradicted evidence, including photographs of the scene showing the crossing, incline, dip in the road, etc., shows that the plaintiff could easily have seen the cars on the tracks if his automobile lights had been burning properly and he swore they were, in ample time for him to have stopped his car which he swore was running between 20 and 25 miles per hour. The evidence shows that the road ran at right angles to the railroad tracks. From a point 120 feet west of the track eastward to the track there is a rise of 4.8 feet, or 4 feet, 9 1/2 inches. From a point 125 feet west of the track the road rises gradually towards the west about 2 feet to a point about 360 feet from the track. It is obvious that the plaintiff could and should have seen the cars not only before he went down the incline toward the dip in the road but also...
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