Construing the petition most strongly against the plaintiff, the facts alleged show that her deceased husband came to his death as a consequence of his own negligence, and fails to allege negligence on the part of the defendant.
DECIDED FEBRUARY 10, 1945. Mrs. R. O. Bassett Jr. sued Merrel P. Callaway as trustee of the Central of Georgia Railway Company for the alleged tortious death of her husband. The exception is to the judgment sustaining the general demurrer to the petition as amended and dismissing the action. The petition material to the issues raised is *Page 98 as follows: "5. Petitioner shows that the injuries and negligence hereinafter complained of occurred on the Fort Benning Boulevard at a point just beyond Baker Village where a railroad track crosses said Benning Boulevard. Petitioner shows further that Benning Boulevard extends from the City of Columbus to the main post of Fort Benning, and that the traffic on said road, which is a public highway, is heavy and more or less continuous at all times. 6. Petitioner shows that on May 21, 1941, at about 3 o'clock a. m., her husband, Col. Bassett, was en route from Columbus to Fort Benning, and was driving his automobile over the Benning Boulevard. Petitioner shows that at a point just beyond Baker Village, a railroad track crosses the Benning Boulevard, and that the background of the crossing in approaching said crossing from Columbus toward Fort Benning is a densely wooded ridge, and that due to this background an object in or across the road at night during the hours of darkness, such as a freight car, is not silhouetted so as to make such an object readily seen by one using the Benning Boulevard at night. 7. Petitioner shows that on the morning of May 21, 1941, about 3 o'clock a. m., while it was still dark, the defendant, through its agents and employees, who were acting in the performance of defendant's business and within the scope of their employment, operated an engine and freight cars on the railroad track at the point where said railroad track crosses Benning Boulevard just beyond Baker Village and southeast of Columbus. Petitioner shows that in the operation of said train, defendant allowed the same to remain stationary with the freight cars thereof across Benning Boulevard and blocking same. Petitioner shows that her husband, Col. Bassett, was proceeding from Columbus to Fort Benning at the time that defendant's train, or freight cars, were motionless and blocking said highway, and was approaching said crossing. Petitioner shows that Benning Boulevard from the Columbus side, shortly before reaching said railroad crossing, bears or makes a turn toward the left, and that due to the dark background on the Fort Benning side of said crossing, and due to the fact that defendant had no warning or safety devices of any character at said crossing, petitioner's husband, Col. Bassett, was unable to see said freight car, or cars, which were across Benning Boulevard and blocking same, in order to avoid running into them, although Col. Bassett applied *Page 99 his brakes and attempted to stop his automobile when said car, or cars, became visible, and as a result of the impact of said collision of his automobile with said freight car, or cars, he received serious injuries, to wit: crushed right knee, fractured right arm and crushed skull, which resulted in his death on May 23, 1941. Petitioner shows that the point where the left turn in Benning Boulevard ceases is about 100 yards from the point where the railroad track crosses Benning Boulevard. Petitioner shows that Col. Bassett applied his brakes when the car or cars on the railroad track first became visible, which was at a point about 50 feet from the railroad crossing. Petitioner shows that the light from the headlights of Col. Bassett's car passed under the stationary freight car or cars standing on the railroad crossing, and in watching the concrete surface of Benning Boulevard, it appeared to Col. Bassett, until he was within 50 feet of said railroad crossing, that Benning Boulevard was unobstructed for some distance beyond the crossing due to the fact that the light from his headlight passed beneath said car or cars standing on the crossing. Petitioner further shows that the freight car across Benning Boulevard with which Col. Bassett's car had impact was painted a dull gray color. 8. Petitioner assigns and specifies the following acts of negligence committed by the defendant at the time and place hereinbefore alleged, and says that they and each of them were the proximate cause of the death of her husband: (a) In placing a freight car, or cars, across said Benning Boulevard at night while it was dark, and allowing same to remain motionless across said highway. (b) In allowing its freight car, or cars, to remain across said Benning Boulevard in the darkness of the night when it should have known that same would not be visible to motorists traveling from Columbus against the dark background on the Fort Benning side of the highway. (c) In allowing said freight car, or cars, to remain across said highway without having a flagman with a lighted lantern, or other light, in the highway on the Columbus side to warn motorists using said highway of the presence of said car, or cars. (d) In not having installed at said crossing a warning signal light. (e) In not having installed at said crossing a warning signal bell. (f) In not having installed near said crossing cross-arms to be lowered across said highway when said crossing was in use by defendant." *Page 100 Was the defendant negligent? The mere blocking of a public crossing at night is not negligence. Unless some reason appears which required the railroad to provide one or more of the extraordinary precautions set forth in the petition, no negligence on the defendant's part is shown. As amended the petition shows that Col. Bassett had a straight stretch of road between him and the railroad crossing for a distance of one hundred yards. In the absence of an allegation that Col. Bassett was not familiar with the crossing it may reasonably be presumed that he was. Central of Georgia Railway Co. v. Adams, 39 Ga. App. 577 (147 S.E. 802). By the same reasoning it may be assumed that the one-hundred-yard stretch was comparatively level, in the absence of allegations that there were physical conditions existing in the highway which made it difficult for Col. Bassett to see the train on the crossing. Also, in the absence of allegations to the contrary, it will be assumed that the weather was clear. No reason is alleged why Col. Bassett's lights would not have shone upon and revealed the presence of the cars unless it was the fact that the lights reflected beneath the freight cars, in which case the lights were in improper condition. It cannot be questioned that it is negligent to operate an automobile at night with lights which would only shine underneath a freight car and not upon some part of it from a distance of fifty feet. Brinson v. Davis, 32 Ga. App. 37 (122 S.E. 643). Therefore it appears from the petition that Col. Bassett was negligent if he drove his car at such a speed that he was unable to stop within the distance of his lights at the time, whether the lights were as required by law or in improper condition. Pollard v. Clifton, 62 Ga. App. 573 (9 S.E.2d 782); 14 A.L.R. 791; 32 A.L.R. 881; L.R.A. 1918F, 425; L.R.A. 1917F, 610; and 44 A.L.R. 1403. If the petition be construed to mean that Col. Bassett was operating his car at such a speed that he could have stopped it after observing the cars he was negligent in not doing so. State Highway Department v.Stephens, 46 Ga. App. 359 (167 S.E. 788). Construing the contradictory theories contained in the amended petition against the plaintiff it will be construed to allege that the lights reflected beneath the cars, and it necessarily follows that *Page 101 the color of the cars and the background had nothing to do with the failure to observe the cars. If the lights went under the cars whether a dark background created a situation which prevented observation of the cars is a question which is eliminated by the inconsistent allegations. Even if this were not true it would seem that if a black or gray wall had been obstructing the crossing, properly working lights would have revealed it. The plaintiff's case must fall because it appears that the injuries resulted solely from the deceased's negligence. It was not alleged that the train was left over the crossing for an unreasonable length of time. Nor was any reason alleged why the defendant was negligent in taking none of the precautions set forth in the petition. But even if the defendant was negligent, the deceased could have avoided the injuries by the exercise of ordinary care after he discovered the train. The following cases are cited and relied on by the plaintiff in error: Central ofGeorgia Ry. Co. v. Heard, 36 Ga. App. 332 (136 S.E. 533);Mann v. Central of Georgia Ry. Co., 43 Ga. App. 708 (160 S.E. 131); Gay v. Smith, 51 Ga. App. 615 (181 S.E. 129);Shelley v. Pollard, 55 Ga. App. 88 (189 S.E. 570); andSouthern Railway Co. v. Lowry, 59 Ga. App. 109 (200 S.E. 553). Each of these cases is clearly distinguishable from this case and those cited in support of the ruling herein. As these distinctions are apparent on the fact of the facts in the cases we shall not discuss them.
The court did not err in sustaining the general demurrer and dismissing the action.
Judgment affirmed. Sutton, P. J., and Parker, J., concur.