Seaboard Air-Line Railway v. Winham

91 S.E. 29, 146 Ga. 256, 1916 Ga. LEXIS 695

• Court: Supreme Court of Georgia
• Decided: December 13, 1916
• Status: Published

Opinion

Atkinson, J.

In an action for damages against a railroad company tlie petition alleged, among other things, the following in substance: The defendant left a box-car standing at a public crossing in a town in such position that one end extended to about midway of the crossing, leaving about ten feet of the crossing unobstructed; and it was unusual and unnecessary to leave such car so standing on the crossing. The plaintiff was traveling, as a guest of another person, along the street in a buggy, which was-being drawn by a horse. The horse “was a trustworthy and gentle animal, and prior to said date was not afraid of a box-car.” On approaching the crossing the horse saw the car and stopped; the driver handed plaintiff the reins, and got out to lead the horse by the car. The horse “led willingly and did not seem frightened until he got on the track, . . when the front wheel of the buggy struck the rail of the railroad-track . . and made a little noise that caused said horse to look up at the end of the car, . . and . . he became frightened at the car” and ran away, throwing the plaintiff out and causing her to be injured. Held:

(а) The petition was sufficient to withstand a general demurrer. Louisville & Nashville R. Co. v. Barnwell, 131 Ga. 791 (63 S. E. 501); 3 Elliott on Railroads, § 1264; 33 Cyc. 1153; Whistenant v. Southern States Portland Cement Co., 2 Ga. App. 598, 605 (59 S. E. 920). See also City of Rome v. Suddeth, 116 Ga. 649 (42 S. E. 1032).

(б) The exception to the overruling of the special demurrer was not referred to in the brief of counsel for the plaintiff in error, and will be treated as abandoned.

Judgment affirmed.

Pish, C. J., and Hill, J., dissent. The other Justices concur.