16 Ga. App. 1 | Ga. Ct. App. | 1915
Barna brought suit for damages against the Rome Railway & Light Company, alleging, that about 5 o’clock in the afternoon, on January 18, 1913, he left the city of Rome to return to his home at Livingston, in company with James Keith; that
Besides demurring on special grounds, which need not be considered, the defendant demurred generally on the ground that the petition set forth no cause of action; and it excepts to the overruling of the demurrer. From the petition it appears that the plaintiff plainly perceived that the conductor, acting as motorman and running the car at the time the collision occurred, was not looking forward towards the point where the plaintiff attempted to cross the track, but was looking backwards, and the further fact was noted by the plaintiff and the driver that the car was coming at the rapid rate of 20 miles per hour or more, and yet, when the car was only 100 yards from them, the attempt was nevertheless made to cross from the right side of the road (where the ordinance of the city required the vehicle to be) to the left side, where the vehicle had no legal right to go, in front of the rapidly approaching car and in face of obvious danger. And it also appears that the only excuse offered for the disregard of the city ordinance and the effort made to cross the track in defiance thereof was the conclusion of the plaintiff or the driver, or of both (it does not clearly appear from the petition which), that on account of the fear of the curbing, which the mule on the right-hand side of the team was exhibiting, the left side of the street (going out of the city) would be a place of greater safety.
It is apparent, from the petition, that, admitting the truth of all the allegations of negligence attributed to the defendant, the accident would not have occurred if the driver and his passenger had not deliberately gone in front of the rapidly approaching car in attempting to cross over to the side of the street where they did
The plaintiff discovered the negligence of the defendant when the car was 100 yards away, and it was his duty under the law to avoid the consequences thereof if possible. The Civil Code, § 4426, declares that “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” The plaintiff’s petition suggests no reason why the consequences of the defendant’s negligence could not have been avoided by him. “The plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof
It is clear, from the petition, that the plaintiff, by the exercise
Judgment reversed.