Lane v. Gay

41 Ga. App. 291 | Ga. Ct. App. | 1930

Lead Opinion

Broyles, C. J.

In this case the court passed the following order: “Demurrers sustained and ease dismissed, on authority of Adams v. Central of Ga. Ry. Co., 39 Appeals, 577.” In our judgment the case was properly dismissed, since the averments of the petition in the instant case and of the petition in the Adams case were substantially the same; and, as was said by this court in the Adams case, “admitting as true only the allegations of fact in the petition, we can not escape the conclusion that the petitioner was the author of his own misfortune, and that the acts of negligence alleged against the defendant did not contribute to or concur with petitioner’s negligence in causing the collision.” See also Brinson v. Davis, 32 Ga. App. 37 (122 S. E. 643). The allegations of fact in the case of Central of Georgia Ry. Co. v. Heard, 36 Ga. App. 332 (136 S. E. 533), cited in the brief of counsel for the plaintiff in error, distinguish it from the Adams case and the instant case, and the ruling in the Heard case will not be extended to cover the facts of the case at bar.

Decided March 5, 1930. Rehearing denied April 15, 1930. Oliver & Oliver, John Z. Ryan, for plaintiff. Hitch, Denmark & Lovett, for defendant.

Judgment affirmed.

Luke <md Bloockoorih, JJ., concur.

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Concurrence Opinion

Bloodworth, J.

I concur in the judgment of affirmance because I am bound by the majority opinion in the case of Central of Georgia Ry. Co. v. Adams, 39 Ga. App. 577 (147 S. E. 802).