Brinson v. Davis

122 S.E. 643, 32 Ga. App. 37, 1924 Ga. App. LEXIS 240

Opinion

Broyles, C. J.

(After stating the foregoing facts.) While it is true, as shown by the petition, that the plaintiff was a guest of the driver and owner of the automobile which collided with the defendant’s train, and, therefore, that any negligence of the operator of the automobile is not imputable to the plaintiff, it is our judgment that the plaintiff is not entitled to recover, because the allegations of his petition show as a matter of law that his injuries were occasioned solely by the negligence or want of ordinary care of the driver of the automobile in driving his machine upon the crossing when he could not see what was upon the crossing; and that the acts of negligence alleged against the defendant did not contribute to, or concur with the negligence of the driver in bringing about, the plaintiff’s injuries. The cases cited and relied on by counsel for the plaintiff in error are distinguished by their particular facts from the case at bar. In this ease the operator of the automobile did not attempt to drive over a crossing in front of a moving train or drive around a standing train, but, in the language used in the brief of counsel fox the defendant in error, “He, with the plaintiff sitting by his side, carelessly and recklessly, and, to accept his own statement, blindly and being unable to see, undertook to go through the freight-train. Here was an obstruction which would have been seen had the party in the automobile looked, provided the headlights on the automobile were working and illuminating the road in front of the automobile in accordance with the State law.” It follows from what has been said that the court did not err in sustaining the general demurrer to the petition and in dismissing the case. ■

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.