Collett v. Atlanta
| Decision Date | 15 August 1935 |
| Docket Number | No. 24267.,24267. |
| Citation | 51 Ga.App. 637,181 S.E. 207 |
| Parties | COLLETT. v. ATLANTA, B. & C. R. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The evidence failed to support the substantial allegations of the petition.
2. "One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, can not hold another liable for damages from injuries thus occasioned." Southern R. Co. v. Hogan, 131 Ga. 157, 62 S. E. 64.
3. The court did not err in granting a nonsuit.
Error from Superior Court, Meriwether County; L. B. Wyatt, Judge.
Suit by Mrs. A. E. Collett against the Atlanta, Birmingham & Coast Railroad Company. To review a judgment of nonsuit, plaintiff brings error.
Affirmed.
John J. Neely, of Manchester, and R. A. McGraw, of Greenville, for plaintiff in error.
Lovejoy & Mayer, of La Grange, and Atkinson & Allen, of Greenville, for defendant in error.
Mrs. A. E. Collett filed suit against the defendant railroad company, asking for damages on account of the death of her husband, alleged to have been caused by the negligent operation of one of its passenger trains. Petitioner's action as amended was stated in two counts.
The first count, after making the usual allegations as to jurisdiction, alleged that the "husband of the petitioner was struck and killed by a locomotive and train being operated and belonging to the defendant" and that the accident occurred on May 21, 1933, "at or near four o'clock a. m. at night"; that "husband of petitioner was struck as aforesaid and killed on and at a public crossing * * * within the corporate limits of the city of Manchester, said public crossing being where Franklin street, a public street, and leading thoroughfare of the city of Manchester, passes over and across the line and railroad track of the defendant"; that "said locomotive and train was being operated and was being run at a high, dangerous, reckless, and negligent rate of speed, at the rate of speed of from 35 to 45 miles per hour as the same approached said crossing, and advanced upon and passed over said crossing, and at the time such locomotive and train struck and killed the husband of petitioner"; that the agents and servants of the defendant in charge of the train and the engineer "failed to ring and failed to toll the bell on same as it approached and went upon said public. street and crossing as aforesaid, and same did approach and did go upon said crossing within the corporate limits of said city of Manchester without ringing and tolling the bell and without giving warning of its approach"; that said engineer failed to keep and maintain a constant and vigilant lookout along the track ahead of said engine as it approached the crossing; that said engineer and agents and servants of said defendant failed to have said train under proper control when approaching said crossing in order to avoid doing injury to persons or property on said public crossing or within 50 feet of said crossing; that "the night was dark and smoky, " and that at said crossing the city of Manchester maintained an electric light 25 feet above ground for the purpose of shedding light on said Franklin street at the crossing, and that, on account of the darkness and smoke and on account of the electric light, "it was impossible for said husband of petitioner to know that any train was approaching as he approached and walked on same, " and that "when he entered upon said public crossing in said Franklin street the aforesaid passenger train of the defendant came suddenly upon her husband * * * without warning or notice of its approach and running at said high and negligent and reckless rate of speed as aforesaid, and struck her said husband while he was on said crossing en route to his home and before he could avoid being struck by said engine and train and while endeavoring to avoid being struck, and when he was so struck he was thrown, knocked, hit and dragged approximately twenty yards along said track"; that said engineer had no objects in the way to obscure his view or sight of her said husband, and that he could have seen her husband as he approached and entered upon said public crossing for more than 1, 000 feet before the engine arrived at said crossing if he had used due care in keeping a vigilant lookout ahead; and that, by reason of the above acts of negligence, the defendant company was liable to her in a named sum.
The second count was to the effect that deceased was struck at a point near Franklin street as it crossed defendant's tracks, "and within 150 feet of said crossing": that the point where deceased was struck was a place "where many people use same day and night." The substantial allegations of negligence alleged in the first count are contained in the second count.
The case proceeded to trial. Plaintiff introduced evidence, and, upon motion of defendant at the close of plaintiff's evidence, the court granted a nonsuit. As we view the case, the grant of a nonsuit was proper for two reasons: First, that the evidence for the plaintiff failed entirely to support the substantial allegations of the petition; and, second, that it is apparent from the testimony, giving plaintiff every benefit of doubt, that the deceased, by the use of ordinary care, could have avoided the consequences of the defendant's negligence. The evidence tended to show that on the morning of May 21, 1933, the deceased was found by his wife in a coalhouse behind his residence with a number of wounds on his head. This was some time in the early morning....
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