Douglass v. Central of Georgia Railway Co.

Stephens, J. 1. Whatever negligence, if any, may have been attributable to the driver of an automobile in driving it through a thick cloud of dust when approaching a railroad-crossing over which a train was passing, and in being forced, in order to avoid a collision with the train, to turn the automobile to one side and bring it to a stop parallel with the railroa'd-track and within three or four feet of the track, yet where the railroad-track at this point was, with reference to the position of the automobile, in the shape of a convex curve, and where, due to the negligence of the railroad company in permitting the outer rail of the curve, at a point off from the crossing and in the direction from which the train was coming, to remain in an insecure condition, such as being insecurely bolted and insecurely fastened to the crogs-ties, and the speed at which the train was running and the centrifugal force of the last car of the train, this car jumped the track and swung over to a distance of about three feet in the direction of the standing automobile and struck and caught the front end of the automobile and swung it around and thereby fatally injured a person who was in the automobile as a guest of the driver, it can not be said as a matter of law that the conduct of the driver of the automobile, and not the alleged negligence of the railroad company in operating its train in the manner and under the conditions indicated over the crossing, was the proximate cause of the injury. The petition, in a suit brought by the wife of the person who was fatally injured, to recover of the railroad company damages for his homicide, set out a cause of action, and the court erred in sustaining the general demurrer. Judgment reversed. Jenkins, P. J., and Sutton, J., concur.