43 Ga. App. 573 | Ga. Ct. App. | 1931
The sole question presented by the record in this case is whether or not the trial judge erred in sustaining the general demurrer to the petition as amended. Omitting its formal allegations and some of those allegations that are not necessary to be considered in determining the question under consideration, the petition alleges: 3. That petitioner is a woman fifty-nine years of age, and on March 22-, 1929, was in the employ of the Fitzgerald
By amendment the petitioner alleged “that she was approaching such crossing with a number of the employees of the cotton-mill where they were employed; that “it had been for a number of years the custom of such employees, in large numbers and groups, to cross such track at the noon hour, and the defendant was well aware
The railroad-track was practically straight for a distance of about a mile in the direction from which the hand-car was coming. When injured, petitioner was going home at the noon hour from a plant where she had been working for approximately twenty-eight 'years. She must have been perfectly familiar with the railroad-track and the crossing. The only reason assigned why petitioner did not see the approaching hand-car is that her view was obstructed by the usual crowd coming from the mill, and, so far as the petition shows, no member of that crowd was struck by the hand-car. Why petitioner’s view of the hand-car and its occupants was obstructed while the persons driving that car “had a full, clear view of . . petitioner” does not appear. Petitioner was “in perfect physical condition,” and her senses of hearing and seeing must have been all right. This case resembles that of Cox v. Central of Ga. Ry. Co., 38 Ga. App. 88 (143 S. E. 444), in that there is no allegation that petitioner’s attention wras distracted in any way. We are aware of the rule that questions of negligence, including contributory negligence, must be decided by the jury and not by the court upon demurrer, “ except in plain and indisputable cases,” but, in our opinion; this is a plain and indisputable case. We think that the petition shows that the petitioner could have avoided the alleged injuries by the exercise of ordinary care, and that her lack of care places her in the attitude of being the author of her own misfortune.
Judgment affirmed.