57 Ga. App. 621 | Ga. Ct. App. | 1938
This was an action for damages for personal injuries. The allegations of the petition as amended are substantially as follows: (1) On December 30, 1930, at 6 a.m., plaintiff was a guest in a ear being driven along East Avenue in Cedar-town and which was approaching the Central of Georgia Railway crossing. (2) There are ten tracks over the grade crossing upon which the collision occurred, and the collision occurred on the last track. The ear was traveling as aforesaid and on the right side of the street at a speed of about ten miles per hour, going in a westerly direction, and after it had crossed nine tracks of the said railway and as it reached the western track, it collided with a freight-train moving over the crossing, the left front of the automobile coming in contact with the right side of the coal tender just at the immediate rear of the locomotive. (3) The train was traveling north at a rate of about twenty or twenty-five miles per hour. (4) The car in which plaintiff was riding had crossed nine tracks of the crossing before the locomotive of the defendant came upon the crossing on the tenth track. (5) Before the locomotive came upon the crossing it was not visible to one approaching from the direction in which the car came, and the view was obstructed by various objects and conditions described in the petition as amended, including the string of cars on the ninth track
Under the rulings in the cases of Lewis v. Powell, 51 Ga. App. 129 (179 S. E. 865), and Central of Georgia Railway Co. v. Leonard, 49 Ga. App. 689, 707 (176 S. E. 137), it was not error to overrule the general demurrer to the petition. While the facts alleged in neither case are exactly similar to those in the case at bar, we think the principles announced are applicable and are controlling. While in the Lewis case the driver was unaware of the
The second ground of demurrer, that there are no averments as to the width of East Avenue, in the absence of which the situation is not properly presented, if sufficient to raise a question for decision, is without merit since sufficient facts are alleged to enable a defense to be made.
Ground eight of the special demurrer should have been sustained. This ground is substantially as follows: that the clause to the effect that there was negligence in that the engineer and fireman failed to keep a proper lookout ahead as said train approached and entered upon said crossing is equivocal, contradictory to the remaining averments of the petition, and is in no way pertinent or relevant in the present case, for the reason that under the averments of the petition said engine had proceeded entirely across said street, and said automobile in which the plaintiff was riding ran into the side of said train as it was over and across said street; that the clause “and failed to stop said train when they saw or in the exercise of ordinary care should have seen that a
Ground nine of the special demurrer should have been sustained. This ground is substantially as follows: that there are no averments showing or tending to show within what distance said train could reasonably have been stopped, and especially that there are no averments showing or tending to show that it could have been stopped in a less distance than two car-lengths; that the averment to the effect that the continued movement of the train and the dragging of the automobile continued and increased the damage and injuries to the plaintiff, is a mere conclusion of the pleader and is vague, indefinite, uncertain, and equivocal, in that it is not alleged how or in what respect or to what extent the damage and
There is no merit in any of the other assignments of error.
Judgment reversed.