Sanders v. Sisk , 68 Ga. App. 572 ( 1942 )

Under the allegations of the petition that on a public highway between Atlanta and Marietta, Georgia, the plaintiff's deceased husband, at about 6 or 7 o'clock on the evening of March 29, 1941, had alighted from a street car which had stopped at a designated place for the reception and discharge of passengers, and was proceeding across the highway to a building just opposite the street car and in which he was employed, when he was run into and killed by the alleged negligence of the defendant in driving an automobile along the said highway, approaching the place where the street car had stopped with its lights burning, at an unlawful rate of speed, sixty to seventy miles an hour, without keeping a lookout for those upon the highway, not having the automobile under control, failing to give any signal or warning of his approach, and not checking the speed of his automobile, although he knew, or by the exercise of ordinary care could have known, that the car had stopped and was discharging passengers therefrom, it could not be said as a matter of law that the deceased husband was negligent in attempting to cross the highway under the circumstances named, and it was for the jury to determine whether the deceased was negligent, and, if negligent, whether his negligence was equal to or greater than that of the defendant, and whether the deceased could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. The petition set forth a cause of action, and the court did not err in overruling the defendant's motion to dismiss the action.

Judgment affirmed. Stephens, P. J., and Felton, J.,concur.

DECIDED NOVEMBER 12, 1942. REHEARING DENIED DECEMBER 15, 1942.