28 S.E.2d 879 | Ga. Ct. App. | 1944
1. The special grounds of demurrer, not having been argued or insisted upon in the brief of counsel for the plaintiff in error, will be treated as abandoned.
2. The petition, which alleged that the plaintiff's minor son, who was fifteen years of age, approached a public crossing which was blocked by a train of freight cars, and after making an investigation and ascertaining that no engine was attached to the cars, or in sight from the crossing, was injured by the sudden movement of the cars, caused by an engine of the defendant bumping into the train of cars and causing it to move suddenly and without notice or warning of any kind, as the plaintiff's son was proceeding over the crossing by going underneath the coupling between two of the cars, set out a cause of action as against general demurrer.
3. Under the allegations of the petition, it does not appear as a matter of *591 law that the injuries to the plaintiff's son were the proximate result of his own negligence or failure to exercise ordinary care, and the court did not err in overruling the general demurrer to the petition.
The defendant filed general and special demurrers to the petition. The grounds of general demurrer were as follows: "(1) Conclusions *593 of the pleader being ignored, said petition sets forth no cause of action in favor of the plaintiff against this defendant; (2) . . said petition shows on its face that the alleged injuries to the plaintiff were caused by his own negligence and failure to exercise ordinary care and diligence for his own safety; (3) . . said petition shows on its face that the alleged negligence of the defendant created no causal relation to plaintiff's injuries, but that the same were due solely and entirely to his voluntarily assuming a known and obvious hazard without any knowledge of the plaintiff."
The judge overruled the demurrer and the exception here is to that judgment.
1. The grounds of special demurrer, not being argued or insisted upon in the brief of counsel for the plaintiff in error, will be treated as abandoned.
2. The minor son of the plaintiff was injured as he attempted to pass over the tracks of the defendant at a public crossing which was blocked by the defendant's train of freight cars. It was alleged that the crossing had been blocked for approximately thirty minutes by the standing train of cars, and that the plaintiff's son and his companion had waited for more than ten minutes before making any attempt to cross over to the other side of the tracks, and then undertook to do so only after they had ascertained that no engine was attached to the train of cars; nor was any in sight from the crossing where they were. They lifted their bicycles over the coupling between two of the cars on the crossing, and then while the plaintiff's son was in the act of passing under the coupling between the two cars to the other side of the crossing, an engine of the defendant, without any signal, warning, or alarm of any kind being given, backed west towards the crossing and bumped into the standing freight cars, causing them to move suddenly and to injure the plaintiff's son. The rights, obligations, and duties of railroads and travelers at public crossings are mutual and reciprocal. Louisville Nashville R. Co. v. Ellis,
It has been ruled in effect by our Supreme Court that one who climbs over or under a train of cars, which has made a temporary stop and apparently will move on at any moment, does so at his peril, and cannot recover for an injury caused by a sudden movement of the train, as such conduct on his part shows such a want of ordinary care as to preclude a recovery as a matter of law. Central Railroad Banking Co. v. Dixon,
We are of the opinion that the act of the plaintiff's son in undertaking to pass over the public crossing between the cars of the defendant's train, after he had waited some time at the crossing and had investigated and ascertained there was no engine attached to the cars, or in sight from the crossing, would not bar the plaintiff from a recovery as a matter of law; but that under the allegations of the petition it is a question for a jury to determine whose negligence is responsible for the injuries sustained by the plaintiff's son in the accident complained of.
3. Under the allegations of the petition, as amended, it does not appear as a matter of law that the injuries to the plaintiff's son were the proximate result of his own negligence, or failure to exercise ordinary care, and the court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Felton and Parker, JJ., concur.