Pollard v. Cartwright

• Decision Date: 22 September 1939
• Docket Number: No. 27715.,27715.
• Parties: POLLARD. v. CARTWRIGHT et al.
• Court: Georgia Court of Appeals

4 S.E.2d 693

POLLARD.

v.CARTWRIGHT et al.

No. 27715.

Court of Appeals of Georgia,

Division No. 1.

Sept. 22, 1939.

Syllabus by the Court.

The court did not err in overruling the general demurrer to the petition.

BROYLES, C. J., dissenting.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Action by J. R. Cartwright and another against H. D. Pollard, receiver, for the homicide of the named plaintiff's wife who was killed, while attempting to cross railroad tracks on a public street crossing, by defendant's train. To review a judgment overruling defendant's general demurrer to the petition, defendant brings error.

Affirmed.

Powell, Goldstein, Frazer & Murphy, of Atlanta, for plaintiff in error.

Geo. & Jno. L. Westmoreland and Dewey Smith, all of Atlanta, for defendants in error.

GUERRY, Judge.

The plaintiff brings suit for the homicide of his wife by the defendant at a public street crossing in College Park, Georgia; alleging that the train of the defendant, without any warning signal of any kind, by bell, whistle, or otherwise, approached said street crossing at a rapid, reckless, and negligent rate of speed of from 30 to 40 miles per hour, without due regard for traffic conditions existing at said time and place, and without due regard for the safety and convenience of persons who might be using said crossing at said time; that no watchman or other employee was stationed at said crossing to warn travelers who approached said crossing; that the engineer and the fireman failed to keep a lookout in the direction in which they were traveling, and although the engineer and the fireman saw or could have seen the deceased by the use of ordinary care they failed to apply the brakes and slow down the train; that the deceased, in company with numerous other pedestrians and many automobiles, was attempting to use said crossing, and that in approaching said crossing the automobiles obscured any view that the deceased had or might have had of said approaching train. The defendant complains of the overruling of his general demurrer and contends that the facts pleaded demanded a finding that the plaintiff's wife was herself so negligent as to prevent her recovery.

The cases principally relied on by the defendant in support of his contention are cases where the injured persons were trespassers or licensees, and particularly is this true with reference to Moore v. Seaboard Air-Line Railway Co., 30 Ga.App. 466, 118 S.E. 471. As was said by Judge Jenkins in Southern Railway Co. v. Slaton, 41 Ga.App. 759, 761, 154 S.E. 718, 719: "But this is an entirely different thing from the court undertaking to decide for itself, and as a matter of law, what such a person lawfully entering upon a public or private railroad crossing must or must not do in order to free himself of a guilt of a lack of ordinary care constituting the proximate cause of his injury. On the contrary, it has been many times ruled that such a question is one to be determined by the jury as a question of fact, rather than by the court as a matter of...