FARMERS MUTUAL EXCHANGE v. Milligan

156 Ga. App. 38 (1980) 274 S.E.2d 83

FARMERS MUTUAL EXCHANGE et al.
v.
MILLIGAN.

60400.

Court of Appeals of Georgia.

Submitted September 15, 1980. Decided October 8, 1980.

O. Wayne Ellerbee, for appellants.

Jack Friday, Charles Jones, William U. Norwood, for appellee.

SHULMAN, Judge.

Defendants Farmers Mutual Exchange and Gold Kist, Inc., appeal from a judgment awarding plaintiff damages for the injuries she sustained in a collision between her automobile and a train. We affirm.

It was plaintiff's contention at trial that box cars negligently placed by defendants on a side track, along with grain bins and metal buildings negligently erected by defendants adjacent to the main train track, obstructed her view of an oncoming train, resulting in her collision with that train. It is defendants' contention on appeal that the evidence dictated the finding that plaintiff was, as a matter of law, contributorily negligent.

Defendants' contentions notwithstanding, the fact that plaintiff may have crossed the track several times prior to the occurrence of the collision and that she may have been aware of the "obstruction" does not mandate the finding that she failed, as a matter of law, to exercise ordinary care in crossing the track. "``Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them ... except in plain and indisputable cases.' [Cit.]" Norton v. Georgia R. & Power Co., 28 Ga. App. 167 (110 S.E. 459). Where, as here, evidence was presented that plaintiff proceeded slowly to cross the tracks after stopping to look right and left, we refuse to hold as a matter of law that plaintiff was contributorily negligent, inasmuch as it was not incumbent upon plaintiff to exercise that degree of care which would have absolutely prevented her injuries.

Nor do we find merit in defendants' assertion that there was no evidence that the box cars and grain bins actually obstructed plaintiff's view, in light of plaintiff's testimony of just such fact.

This court having found no error for the reasons assigned, the judgment of the trial court entered in accordance with the jury award in favor of plaintiff is affirmed on appeal.

Judgment affirmed. Quillian, P. J., and Carley, J., concur.