Driskell v. Powell
| Decision Date | 13 November 1933 |
| Docket Number | No. 7086.,7086. |
| Citation | 67 F.2d 484 |
| Parties | DRISKELL v. POWELL et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
G. Fred Kelley, of Gainesville, Ga., and Frank Harwell and John I. Kelley, both of Atlanta, Ga., for appellant.
John B. Gamble, of Athens, Ga., for appellee.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
The suit of appellant for personal injuries was dismissed on demurrer. She alleged that she was riding as her husband's guest in an automobile at night over an unfamiliar road through Lawrenceville, a town of about 2,000 people, where the road at the edge of town dipping into a hollow filled by a local fog crossed the railroad track 50 feet from the railroad station. They did not know the track was there, and a street light near the crossing did not sufficiently illuminate it on the night in question because of the fog. They suddenly and unexpectedly ran into the fog and into a freight train standing across the crossing and hidden by the fog. Appellant's eyes were destroyed by broken glass, her nose and legs broken, she was rendered unconscious, and the automobile was wrecked. The negligence alleged against the railroad company is that the crossing was blocked; that the light was insufficient in the fog; that, by reason of the fog, some warning by sound, red light, or special watchman ought to have been provided, or the train uncoupled so as to clear the crossing. But it is not alleged how long the train had been standing or that the stopping of it was not necessary; nor how long the densely foggy condition had existed there.
The main argument has been on the point that a sudden and dense fog must have been visible by the automobile lights as a white wall in front, and that to enter and go through it at a speed capable of producing the alleged results was such recklessness in the driver as to be as a matter of law the proximate and sole cause of the injury. We do not decide that contention, for the suit was rightly dismissed on the special ground of demurrer that the acts and omissions alleged do not show negligence on the part of the defendant. When a railroad is permitted to be constructed, its operator may lawfully cross roads and streets with the trains just as members of the public may cross the tracks with their vehicles. Particularly at their depots, railroads may stop their trains and obstruct the crossings for a reasonable time when necessary to the transaction of their business. Smith v. S., F. & W. R. R. Co., 84 Ga. 704, 11 S. E. 455. No city regulations are...
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