Tidwell v. Atlanta

• Decision Date: 18 February 1931
• Docket Number: No. 20627.,20627.
• Citation: 157 S.E. 535,42 Ga.App. 744
• Court: Georgia Court of Appeals
• Parties: TIDWELL. v. ATLANTA, B. & C. R. R.

42 Ga.App. 744

157 S.E. 535

TIDWELL.

v.ATLANTA, B. & C. R. R.

No. 20627.

Court of Appeals of Georgia, Division No. 2.

Feb. 18. 1931.

Syllabus by Editorial Staff.

Plaintiff, suing for damages to automobile by collision with stationary train of freight cars, alleged that freight cars

blocked public crossing for period of time exceeding limit allowed by city ordinance; that petitioner approached crossing cautiously at night, with headlights burning and in good condition at moderate speed, but was misled into thinking that crossing was clear by reason of fact that cars standing on crossing were open cars loaded with sand giving appearance of forming part of roadway.

Error from City Court of Greenville; H. H. Revill, Judge.

Action by W. G. Tidwell against the Atlanta, Birmingham & Coast Railroad. To review a judgment dismissing the petition, plaintiff brings error.

Affirmed.

N. F. Culpepper, of Greenville, for plaintiff in error.

Lovejoy & Mayer, of La Grange, and W. R. Jones, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

BELL, J.

1. Plaintiff sues for damages to his automobile occasioned by a collision with one of the cars forming a part of a stationary train of freight cars, which it is alleged blocked a public road crossing for a period of time exceeding the limit allowed by a city ordinance. Petitioner alleges that he approached the crossing cautiously, at night, with the headlights on his automobile burning and in good condition, on a down grade and at a moderate rate of speed, not exceeding fifteen miles per hour, and that he was misled into thinking that the crossing was clear by reason of the fact that the cars actually standing upon the crossing were open cars loaded with sand, whereas the cars on either side of the crossing were of the box car type, and that the sand on the open cars gave them the appearance of forming part of the roadway. Contrary to the facts in the case of Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332, 136 S. E. 533, there is no allegation of a dense fog such as was there alleged which prevented the cars from being seen for a distance of more than ten feet; and, contrary to the facts in that case, the plaintiff here appears to have knowingly approached the crossing with full knowledge of its proximity and location. The rule stated in the Heard Case cannot be extended so as to apply to the facts set forth in the instant petition, but the case under consideration must be controlled by the rulings of this court...