49 Ga. App. 638 | Ga. Ct. App. | 1934
The plaintiff’s case is predicated upon the negligence of the railroad company in not maintaining a safe crossing, and the fact that when the plaintiff’s husband started to drive across the crossing, the wheels of his automobile were stopped by the cross-ties and the rails, and he was unable to extricate himself in time to escape being killed by a freight-train of the defendant. It will be borne in mind that this is not an action for the destruction of the automobile, but for the death of plaintiff’s husband. The defendant company pleaded that he could have avoided the injury by the exercise of ordinary care. The burden to establish this defense was on the defendant. The evidence for the plaintiff fails to show any of the circumstances at the time of -the killing other than the facts that an automobile, presumably the automobile of the deceased, was struck on the crossing, that the wheels of the automobile had struck the end of the cross-ties and spun; that the front wheels had crossed the first rail and the rear wheel had struck the cross-tie, and it would not let the car go over on account of its being too high, neither would it let the car back off from the crossing. The plaintiff’s evidence is silent as to what period of time elapsed between the stopping of the car on the crossing and the time it was struck by the engine of the defendant. The evidence for the defendant, which was uncontradicted, was that its freight-train of seventy-nine cars, pulled by one of the largest engines on the road, was proceeding towards Gainesville from Atlanta; that the regular whistle signal was blown for the crossing; that there was a curve which prevented the engineer from seeing the automobile until within 150 feet of the crossing, and it was impossible to stop the train before the automobile was struck; that the automobile was squarely across the tracks, and did not have its lights
We know that the questions as to negligence and as to the injured person’s avoidance of danger after it becomes apparent are in most cases matters for the jury. It is possible that the evidence for the plaintiff was sufficient to have left this question to the jury if the suit had been for damage to the car. However, it is inconceivable to our minds how a person in possession of his normal faculties could have driven a car upon the railroad track and then had it to stall with him, whether by the negligence of the railroad company in the maintenance of the crossing, or not, and then have stayed in the car, when a train, wjth a headlight burning and the regular crossing signal given, was approaching. The evidence for the plaintiff fails to show that there was an emergency, and that
Judgment reversed.