Columbus Railroad v. Holcombe

Luke, J. 1. A street-railroad company has only an equal right with the traveling public to the use of the street in which its track is laid. .In using the highway at a public crossing the law gives to the travelers on the highway the same right to cross the track that it gives to the street-car to cross the highway; and the law imposes on the street-railroad company the duty of ordinary care to avoid injury by its cars to persons attempting to cross the track at gpeh places. 2. In a suit against a street-railroad company, where the petition alleged that the injured persons was fifty-four years- of age, deaf in his left ear, and hard oí hearing in his right ear, and approached a street-railroad crossing after looking to his right and left along the railroad-track, and saw a car standing some distance away, and believing he had ample time to- cross the track before a car could reach the crossing [677] where he desired to cross, proceeded on across the street to the crossing ■and on to the track, and as he stepped upon the trade he was' struck by a street-car and knocked down, etc., a general demurrer to the petition should have been sustained; for it is clear, from the allegations made, that by the exercise of ordinary care he could have avoided the injury. The proximate- cause of the injury was his miscalculation, that he had time to cross the track ahead of the car, and his failure to observe the car at all 'after he' made his calculation. The, court erred in overruling the demurrer. Decided October 15, 1918. . Action-for damages; from Muscogee, superior court—Judge Howard. May 20, 1918. F. U. Garrard, A. 8. Beasley, for plaintiff in error. B. Terry, contra. Judgment reversed. Wade,.0. J., and Jenlcms, J., concur.