Atlantic Coast Line Railroad v. Wildman , 1923 Ga. App. LEXIS 180 ( 1923 )

Bell, J.

(After stating the foregoing facts.) The averment in paragraph 8 that "if the said crossing had been kept and maintained by the defendant company according to the spirit of the road law,” the plaintiff’s " injury and damage would not have occurred, and therefore the defective condition of the crossing at that time was the proximate cause of the injury and damage to the plaintiff,” was imperfect as an allegation of proximate cause. It does not follow as a necessary legal conclusion that, because the injury would not have occurred but for the negligence of the defendant, such negligence constituted the proximate cause of the injury (Atlantic Coast Line Railroad Co. v. Daniels, 8 Ga. App. 775, 778, supra); but since it is unequivocally alleged in paragraph 10 (not inconsistently with the former averment) that the defendant’s negligence did in fact constitute the proximate cause of the injury, and since it cannot be held as a matter of law that the alleged acts of negligence, considered in connection with all of the facts and circumstances set forth in the petition, were not the proximate cause as finally alleged, the petition was good as against the general demurrer. After the amendment of the petition, both the general and the special demurrers were properly overruled.

There is a distinction between this case and that of Crooms v. Payne, 26 Ga. App. 739 (107 S. E. 276). It appears in that case that the plaintiff was an employee of the railroad company, and was not seeking to protect his own property, but that of another, from the alleged negligent acts of the defendant. There was no emergency which warranted him in exposing himself to the danger. There may be other distinctions, but this we think is sufficient to show that that case is not authority against the ruling here made.

Judgment affirmed.

Jenkins, P. J.Jand Stephens, Jconcur.