45 Ga. App. 609 | Ga. Ct. App. | 1932
T. C. Echols brought an action against the Atlanta, Birmingham & Coast Railroad Company, to recover damages for personal injuries. Error is assigned on the judgment of the superior court sustaining a general demurrer and dismissing the action. Briefly, the facts alleged are: that the plaintiff was driving a covered truck, the top of which was nine feet and nine inches above the ground, on one of the public streets of the City of Atlanta, at a point over which the defendant railroad company maintains an overhead bridge; that this bridge has a clearance of nine feet and seven inches above the street level; and the plaintiff was driving the truck at a moderate rate of speed, to wit, ten miles per hour, when the top of the truck came into violent contact with' the lower part of the bridge, precipitating the plaintiff to the street and injuring him; that he was unacquainted with the locality and did not know of the insufficient clearance, and could not have ascertained the same by ordinary care; that there was no warning sign there or thereabouts, apprising the public of the clearance space afforded; that “petitioner took only a casual look at same as his truck approached;” that ordinary care required the defendant to anticipate
The majority of this court are of the following opinion: “That this court is bound, under rulings of the Supreme Court in the case of Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (2) (51 S. E. 438), to affirm the judgment sustaining the demurrer to the plaintiff’s petition. The Supreme Court in the Sieele case cited and differentiated the case of Samples v. Atlanta, 95 Ga. 110 (22 S. E. 135), which elaborately discussed the principle that questions of negligence lie peculiarly within the province of the jury. The plaintiff in the Sieele case, however, under facts making a stronger case for the plaintiff than the facts in the instant case, was held not entitled to recover, because of his own failure to exercise proper care to avoid the consequences of defendant’s negligence. Under the facts in the Sieele case it appears that the plaintiff “could not see the bridge good until he got in 30 feet of it, because it was down in a cut,’ and that within 30 or 40 feet of the bridge the plaintiff began to go down hill towards the bridge, saw it just as he started down, and could not stop his team. In the ease at bar the plaintiff was apparently going along a level highway at the rate of 10 miles an hour, and took “only a casual look’ at -the bridge.”
The writer of this opinion thinks that there is a distinction to be drawn between the facts alleged in the petition in the instant case and the facts of the Sieele case. In the Steele case the evidence showed that the plaintiff had been under the bridge before, and that he ““had seen the bridge frequently.” In Barfield v. Southern Ry. Co., 118 Ga. 256 (45 S. E. 282), “there were allegations and evidence to the effect that the space left for passage of loaded wagons under the trestle was too low and narrow; hut the plaintiff was familiar therewith, having driven thereunder several
Judgment affirmed.
Cf. Butts v. Moultrie, 39 Ga. App. 685 (2), 686.