53 F.2d 186 | 5th Cir. | 1931
This was an action by the appellant against the appellee to recover damages for the death of the former’s son, twenty-two years of age, as a result of the automobile he was driving on the Louisville road, a paved road, at about 12:30 o’clock on the morning of July 27, 1930, colliding with a freight train then extending along appellee’s track where it crossed that road, near Central Junction in Chatham county, Ga., and blocking that road. The petition alleged: That the deceased did not see said train of cars because of the fact that the night was dark and the color of the ear crossing said road blended with the darkness of the night; that deceased’s car was equipped with lights which were burning, but those lights did not disclose the ear on the crossing because of the fact that the Louisville road is lower than the elevation upon which is located the track on which said train was standing, and the light from said automobile was thrown too low to' disclose said train until deceased’s car had reached an elevation in the roadway immediately before the point where said train was standing; that as soon as deceased saw said train after reaching said elevation, he immediately tried to stop said automobile by putting on the brakes and turning to the right in order to avoid collision, but was unable to stop said car and avoid striking said freight train upon said track; the impact was such as to greatly damage said automobile and to kill the deceased; and that deceased was driving with ordinary care and caution along said Louisville road, which was clear except as hereinabove stated. The petition charged that appellee was negligent in several specified respects. The court sustained a general demurrer to> the petition, on the ground that the same sets forth no cause of action against appellee, in that said petition shows upon its face that deceased attempted to drive an automobile over a railroad crossing at such a rate of speed that he was unable to stop the same before running into a freight train on the railroad track, when the lights on said automobile of the usual kind were'burning, and when his view of the track was unobstructed; and thereupon the court dismissed the petition at the cost of the appellant.
Under the Georgia law, though negligence of the defendant was a proximate cause of the injury or death complained of, if the person injured or killed by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, there is no right" to recover therefor. Michie’s Georgia Code 1926, § 4426. A Georgia statute provides: “Upon approaching any * * * railroad crossing * * * in traversing such * * * railroad crossing * * * the operator of a motor vehicle or motorcycle shall at all times have said vehicle under immediate control, and shall not operate said vehicle at a greater speed than ten miles per hour.” Michie’s Georgia Code 1926, § 1770 (51).
The judgment is affirmed.