17432 | Ga. Ct. App. | Jan 24, 1927
(After stating the foregoing facts.)
The plaintiff in error relies mainly upon the case of Davis v. Brinson, 32 Ga. App. 37 (122 S.E. 643" date_filed="1924-04-15" court="Ga. Ct. App." case_name="Brinson v. Davis">122 S. E. 643). In the petition in that case, however, there was no allegation, as there is here, as to the fog and other weather condition, and as to the manner in which the plaintiff was affected thereby. From all the facts appearing, we can not say that the railway company was not negligent in at least one or some of the particulars alleged, or that the plaintiff, if negligent, was so negligent as to be barred from a recovery, or that it affirmatively appears that the accident was attributable to negligence on the part of the plaintiff as the proximate cause. It is our opinion that the averments of the petition make a case for a jury, and therefore that the superior court properly overruled the general demurrer.
Judgment affirmed.