Mrs. Annie Studdard (hereinafter called the plaintiff) filed a petition against the Atlantic Coast Line Railroad Company and the Louisville & Nashville Railroad Company and Larry Witcher as defendants, seeking damages growing out of the alleged negligent homicide of her minor daughter, Lillie Mae Studdard, 16 years of age. The defendants filed pleadings, including demurrers filed by the railroad defendants. The plaintiff's petition was twice amended. The defendant Witcher filed a written motion in the nature of general demurrers to dismiss the plaintiff's petition as amended. The court overruled the motion to dismiss the plaintiff's petition. The defendant Witcher assigns error on the order overruling the motion to dismiss the petition as amended, and the case is thus here for review.

The petition alleges that Lillie Mae Studdard was an able-bodied person with the life expectancy of 42 years, and prays recovery for $100,000; that under her status as a passenger she had no right to direct or attempt to control the driving and operation of said automobile; that the defendant railroad company had been accustomed to operating trains on this line exclusively during daylight hours but that this particular train was operated at night but that the collision occurred at 8:15 p.m.; that there were no warning devices of any type to apprise travelers on the highway of the proximity of a train to or on said crossing nor was there a train whistle or bell to warn of the presence of the train; that dense growth prevented a view of the railroad track until within a distance of approximately 100 yards to the crossing and furthermore that there were crossties, etc., left beside the railroad track to further obstruct the defendant Witcher's view. It was further alleged that the defendant Witcher proceeded towards the crossing without reducing his speed until he was within fifty feet of the crossing at which time he discovered the crossing was blocked by the train, he then swerved sharply to the right, but did not apply brakes, thus causing the car to collide with the train, resulting in the death of the plaintiff's daughter; that at the time he struck the train he was traveling at a speed of approximately 40 miles per hour; that his car was equipped with good brakes which would reduce the speed of the car had they been applied; that the automobile driven by the defendant Witcher at a speed of 40 miles per hour could not have been stopped even had brakes been applied in less than 115 feet although the headlights on the defendant Witcher's car would not show an unlighted object more than fifty feet ahead because of the atmospheric conditions prevailing at the time of the collision. The plaintiff's minor daughter was riding as a passenger in the car driven by the defendant Witcher when Witcher's car collided with the train, resulting in the homicide of the plaintiff's daughter.

Counsel for the plaintiff and counsel for the defendant Witcher have cited many cases for the parties represented in regard to the law. We might mention here that counsel for the railroad company did not file a brief. When we analyzed the cases cited in the briefs we found the facts and the pleadings different from the pleadings in the instant case and we therefore determined that the negligence or lack of negligence of all parties concerned are questions to be determined by a jury.

The court did not err in overruling and denying the motion to dismiss the plaintiff's petition as amended.

Judgment affirmed. Townsend and Carlisle, JJ., concur.