60 Ga. App. 581 | Ga. Ct. App. | 1939
Harry E. Hagan and Harry E. Hagan Jr., a minor fifteen years old, sued H. D. Pollard as receiver of the Central of Georgia Kailway, for damagés for the alleged wrongful homicide of Mrs. Kathleen Elizabeth Hagan, their wife and mother. The petition alleged, in substance, that the deceased was killed by a passenger-train of the defendant as she was driving her automobile across a public crossing in Fulton County; that her death was proximately caused by certain specified acts of negligence on the part of the defendant; that the line of railway operated by the defendant, which runs from Atlanta to Macon, Georgia, goes through the town of Fort McPherson in Fulton County; that for some distance to the south of the station known as Fort McPherson the right of way of the defendant parallels the public highway which is several feet higher than the right of way of the defendant; that the crossing where the deceased met her death was known as Miekleberry crossing, and was located several hundred yards south of the station at Fort McPherson; that the track upon which the train was being operated ran in a northerly and southerly direction, and paralleled the highway upon which the deceased was traveling several hundred yards before the place where the deceased turned off onto the public crossing known- as the Mickleberry crossing over the railway right of way; that said crossing is a public crossing and is constantly used by automobile traffic, which was well known to the defendant and its agents; that the collision occurred on October 11, 1938, about 9 :30 o’clock in the morning; that the failure of the deceased to see the train before being struck was because the train was to her rear, she traveling in a parallel direction and going south on the public road adjoining
1. While it is true that a pleading is to be construed most strongly against the pleader, and that if an inference unfavorable to the right of a party claiming a right under such pleading may be fairly drawn from the facts stated therein, such inference, on demurrer, will prevail in determining the rights of the parties (Krueger v. MacDougald, 148 Ga. 429, 96 S. E. 867), and that no person can recover damages from a railroad company for injuries to himself where the same are caused by his own negligence, or where by the exercise of ordinary care he could have avoided the consequences to himself caused by the railroad company’s negligence, still it has been held many times by this court and the Supreme Court that what amounts to negligence, contributory negligence, proximate cause, etc., are questions peculiarly for the determination of a jury under appropriate instructions from the
2. The allegations that the waiting-depot was located at the public crossing, on the western side thereof, and on the extreme-eastern edge of the public highway, and adjacent to the right of way of the railroad company at this point, and that because of the location and position of the said waiting-depot, which was between the deceased’s automobile and the passenger-train of the defendant just before her automobile got upon said crossing, were not subject to the special demurrer to the effect that the waiting-depot was not described and that its location was not stated, and whether this structure was of such a nature as to obstruct the view of the tracks of the defendant or of said public crossing. It will be seen from the allegations of the petition that the waiting-depot was between the deceased and the approaching passenger-train of the defendant as the deceased drove her automobile from the public highway onto the railroad crossing, and that her view of the approaching train was thereby obstructed.
3. The allegations that a long freight-train belonging to and operated by the defendant was also traveling in a southerly direction along an adjacent track upon which the passenger-train was traveling, and that the rear of said freight-train had just cleared the crossing when the deceased went onto said crossing from the public highway, and that she was unable to hear the passenger-train, which was approaching the crossing, because of the noise made by the freight-train, are not subject to the special demurrer bn the ground that the length of the freight-train is not stated, and it is not shown how far ahead of the passenger-train the freight-train was being operated, or whether it was standing or moving at the time of the alleged accident, or whether the track upon which the freight-train was moving was immediately adjacent to that upon which the passenger-train was moving, or on the ground that it does not appear how or in what manner the noise made by the freight-train prevented the deceased from hearing the passenger-train, or whether the freight-train was standing or moving. It will be seen from the allegations of the petition that the freight-train referred to was a long freight-train, that it was traveling in a southerly direction on a track adjacent to the one
Judgment affirmed.