23 Ga. App. 285 | Ga. Ct. App. | 1919
Orrin P. Poole sued the Central of Georgia Railway Company for damages on account of certain personal injuries to himself, alleged to have been brought about substantially as follows: On the night of June 13, 1917, about 12:30 o’clock, the plaintiff, a deputy marshal of the City of Marshallville, who, as such, had been generally requested by defendant to regularly inspect its depot, was standing on the defendant’s walk or gravel platform, which was in close juxtaposition to a side-track seldom used by the defendant, and at a point used by the public generally in awaiting trains and in going to and from the depot. The depot was in total darkness, and running parallel to it were three lines of track,—the main line and a side-track on each' side thereof. The defendant’s engine with 'its long line of freight-cars came into the City of Marshallville on the main line, and stopped at the station—the train extending some distance above and below the station. The train was uncoupled below the station, beyond the
The facts alleged convey to us such a mental picture of the circumstances leading up to and surrounding plaintiff’s injury as to compel the conclusion that a cause of action was set out, entitling the plaintiff, in the event his allegations of negligence should be sustained by proof, to have his case submitted tó a jury. We cannot say, as a matter of law, that the petition as a whole showed such a want of ordinary care on his part as to authorize its dismissal on demurrer. No fixed rule or set of rules can be laid down or followed in cases of this character, since they stand largely upon their own. facts, and questions of negligence are questions of fact, for determination by a jury. We gather from the briefs of counsel that the trial court’s action in sustaining the demurrer and dismissing the case was more or less influenced by the ruling of this court in the case of Southern Railway Co. v. Young, 30 Ga. App. 363 (93 S. E. 51),. The similarity'between that case and this case is not such as to be controlling; the salient differences being that in the Young ease the train was a passenger-train being operated on the main line, after midnight, with its headlight burning and clearly visible to the plaintiff long before the locomotive struck him; that when injured he was calmly walking in a path, which
We cannot say, as a matter of iaw, that the plaintiff was guilty of such contributory negligence as to defeat a recovery, but it is for a jury alone to say to what extent, if any, he contributed to his injury. It is the opinion of this court that the petition as amended set forth a cause of action, and the trial judge erred in dismissing the case on demurrer.
Judgment reversed.