Southern Railway Co. v. Frazier

Court of Appeals of Georgia

Southern Railway Co. v. Frazier

149 S.E. 425, 40 Ga. App. 364, 1929 Ga. App. LEXIS 158

CourtCourt of Appeals of Georgia

DecidedAugust 23, 1929

Docket19827

StatusPublished

Cited by3 cases

This text of 149 S.E. 425 (Southern Railway Co. v. Frazier) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Southern Railway Co. v. Frazier, 149 S.E. 425, 40 Ga. App. 364, 1929 Ga. App. LEXIS 158 (Ga. Ct. App. 1929).

Pincite

Opinion

Broyles, C. J.

1. Ordinarily wlicrc one sues a railroad company for injury to himself or his property, whether the negligence of the plaintiff amounted to an omission to take ordinary care for his own safety is a question of fact for the jury, yet if the evidence, including the testimony of the plaintiff himself, demands a finding that the plaintiff did not use ordinary care to prevent the injury sued for, a verdict in his favor is not authorized by the evidence, and a new trial should be granted. Gainesville Railway Co. v. Ham, 17 Ga. App. 500 (87 S. E. 715), and cit.

2. This is a suit against a railroad company for damage to an automobile, caused by a collision on a public crossing'. The plaintiff’s only witness was himself. His testimony in material particulars was self-contradictory, and, construed most strongly against him, showed that, while operating his automobile, he approached the railroad-crossing at a rate of speed greater than ten miles per hour (which amounted to negligence per se on his part), and further that under all the facts of the case his negligence amounted to a lack of ordinary care. The other evidence in the ease strongly tended to disprove the plaintiff’s right to recover. It follows that the verdict in his favor was contrary to law and the evidence, and the refusal to grant a new trial was error. See, in this connection, L. & N. R. Co. v. Lusk, 37 Ga. App. 99 (139 S. E. 89).

Judgment reversed.

Luke, J., eoneurs. Bloodioorth, J., dissents.

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Broyles, C. J.

1. Ordinarily wlicrc one sues a railroad company for injury to himself or his property, whether the negligence of the plaintiff amounted to an omission to take ordinary care for his own safety is a question of fact for the jury, yet if the evidence, including the testimony of the plaintiff himself, demands a finding that the plaintiff did not use ordinary care to prevent the injury sued for, a verdict in his favor is not authorized by the evidence, and a new trial should be granted. Gainesville Railway Co. v. Ham, 17 Ga. App. 500 (87 S. E. 715), and cit.

2. This is a suit against a railroad company for damage to an automobile, caused by a collision on a public crossing'. The plaintiff’s only witness was himself. His testimony in material particulars was self-contradictory, and, construed most strongly against him, showed that, while operating his automobile, he approached the railroad-crossing at a rate of speed greater than ten miles per hour (which amounted to negligence per se on his part), and further that under all the facts of the case his negligence amounted to a lack of ordinary care. The other evidence in the ease strongly tended to disprove the plaintiff’s right to recover. It follows that the verdict in his favor was contrary to law and the evidence, and the refusal to grant a new trial was error. See, in this connection, L. & N. R. Co. v. Lusk, 37 Ga. App. 99 (139 S. E. 89).

Judgment reversed.

Luke, J., eoneurs. Bloodioorth, J., dissents.

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Bluebook (online)

149 S.E. 425, 40 Ga. App. 364, 1929 Ga. App. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-railway-co-v-frazier-gactapp-1929.

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