Opinion
44412, 44413.
ARGUED APRIL 7, 1969.
DECIDED APRIL 28, 1969.
Action for damages. Haralson Superior Court. Before Judge Winn.
Matthews, Maddox, Walton Smith, James D. Maddox, for appellant.
Howe Murphy, Harold L. Murphy, for appellees.
There being a genuine issue as to a material fact the denial of the motions for summary judgment was not error.
ARGUED APRIL 7, 1969 — DECIDED APRIL 28, 1969.
Dorothy Floyd and her husband, George Floyd, hereinafter referred to as plaintiffs, filed companion suits in Haralson Superior Court.
The complaints allege that: on or about November 20, 1965, at approximately 10:30 a. m. Dorothy Floyd was walking on the sidewalk on the north side of Tallapoosa Street in the City of Bremen, Georgia, where same is intersected by a switching track of the defendant Southern Railway Company; as she traversed said track while in the exercise of ordinary care for her own safety, the heel of her shoe became hung and trapped by the rail of said Southern Railway throwing her to the sidewalk and inflicting certain injuries upon her.
Southern's answer contends that Mrs. Floyd's injuries were caused by her own negligence or by accident.
The defendant took the testimony of Mr. and Mrs. Floyd for the purpose of cross examination and discovery. Subsequently, Southern filed motions for summary judgment based upon the pleadings in the cases and the depositions of the plaintiffs.
Southern's motions for summary judgment were denied, it appealed and the cases are here for review.
The evidence disclosed that: Mrs. Floyd walked along the sidewalk over the railroad tracks en route to a dress shop; while returning from the shop she was in the process of crossing the tracks again when she fell; she stepped on the train rail and her foot slipped off the rail and her heel went into a hole causing her to fall; that she was familiar with the crossing; she thought she knew the hole was there; she was looking down and watching every step she made.
The defendant contends that Mrs. Floyd did not exercise due care for her own safety because she knew the hole was there and deliberately stepped on the rail from which her foot slipped resulting in her fall. Had Mrs. Floyd stepped into the hole which she knew existed we would agree with the defendant's contention. Wade v. Roberts, 118 Ga. App. 284 ( 163 S.E.2d 343). However, in the case sub judice she stepped on the train rail and her foot slipped into the hole. Whether this act was negligent would be an issue for the jury to determine. Likewise, it would be a question of fact whether the defendant was negligent in the manner in which it maintained the crossing. Code § 94-503; Yancey v. Southern R. Co., 99 Ga. App. 493, 495 ( 109 S.E.2d 300). In the event the jury found both parties were negligent the comparative negligence doctrine would apply.
The denial of the motions for summary judgment was not error.
Judgments affirmed. Felton, C. J., and Pannell, J., concur.