Southern Railway Co. v. Frazier

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

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.