Columbus Railroad v. Berry , 142 Ga. 670 ( 1914 )

Hill, J.

(After stating the foregoing facts.) We can not say, as a matter of law, that the allegations of the petition, which are set out in substance in the foregoing statement of facts, did not state a cause of action. If the allegations are true (and they must be so taken on demurrer), they present a case for the jury to determine whether or not the plaintiff, under the circumstances alleged, was so lacking in ordinary care as to preclude a recovery on his part. The cases cited by the plaintiff in error, and on which it relies for a reversal of the judgment of the court below (Harris v. So. Ry. Co., 129 Ga. 388, 58 S. E. 873, Thomas v. Central Ry. Co., 121 Ga. 38, 48 S. E. 683, and Atlanta Ry. &c. Co. v. Owens, 119 Ga. 833, 47 S. E. 213), are distinguishable from the present one. In each of those cases the plaintiff had notice of the approach of the train, and took the risk of crossing the track ahead of the engine and ears. Two of them were cases of steam railroads, where a somewhat different rule applies. See Howard v. Savannah Electric Co., 140 Ga. 482. In the Owens case, supra, the plaintiff testified that she was coming up Grant street and saw a large covered wagon ahead of her, so she could not pass. “Of course I had to turn, and I just drove diagonally across the track, and after I got on the track I saw the car was coming so close, and I whipped my horse up, and before I got off the car struck me. . . The character of the covered wagon as to obstructing my view up the street in front of me was such that I could see the light of the car, but could not see the ear itself. I saw the light of the car before I drove upon the track. I knew the car was coming, and I saw the light.” Judge Cobb, in delivering the opinion in that case, said: “This seems to be a case where the plaintiff, knowing the danger, deliberately took the risk of being able to cross before the car could reach the point where she intended to cross, and made an error of judgment as to the time that would elapse before the crossing could be made or before the car could reach that point. Such an attempt, under such circumstances, was an act of gross negligence on her part, and evidenced such a lack of prudence as to entirely defeat a recovery by her.”

In the instant ease the plaintiff alleged: “At the intersection of Broad and Eighth streets, plaintiff looked south down Broad street to ascertain if any car was going north on the east line of railroad track, at which point plaintiff could see down said track' for a distance of 300 or 400 yards, and that he saw no car approaching from the south on said east line of railroad track, and plaintiff then proceeded north up Broad street, driving in a swift trot to the park crossing between said Eighth and Ninth streets a distance of about 90 yards from Eighth street, and believing that no car traveling at the usual and ordinary rate of speed which cars travel on said track had sufficient time to reach the park crossing aforesaid, after looking down said track at Eighth street as aforesaid, and believing that there was no danger from a car approaching said park crossing on said east track from the south, plaintiff directed his attention in looking for cars that might be approaching said crossing from the north, and either from the noise made by defendant’s buggy on the pavement or the noiseless approach of said car from the south, he did not either see, hear, or observe said car which was going north on said east line of track at the time he attempted to cross over same, and plaintiff had no knowledge of the fact that said car was approaching said crossing from the south on said east line of track, nor was he apprized of any danger of being struck by said ear at the time of crossing or attempting to cross over said east line of railroad track.” According to the allegations the plaintiff had no notice of the approach of defendant’s cars, although he had looked in both directions to ascertain if they were approaching and saw none. It was alleged that the motorman saw the plaintiff before he was struck and could have avoided the injury. In short, the allegations of the petition charge the defendant with negligence; 'and it is for the jury to say whether, under all the facts averred (if they be proved on the trial), the plaintiff was guilty of such negligence as to amount to a want of ordinary care so as not to entitle him to recover. The court did not err in overruling the demurrer. See Howard v. Savannah Electrics Co., supra.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.