144 Ga. 139 | Ga. | 1915
Lead Opinion
An action for damages was brought by the plaintiff against the defendant, for injuries alleged to have been received while alighting from a moving train, and to have been occasioned by the negligence of the defendant in failing to stop its train at the destination of the plaintiff a sufficient length of time to enable him to alight in safety. At the conclusion of the plaintiff’s evidence the court, on motion, granted a nonsuit, and to this judgment the plaintiff excepted.
It appears, from the evidence in the record, that the plaintiff became a passenger on the defendant’s train at Swainsboro, with a ticket to Blun, a station a few miles from Swainsboro. He occupied a seat in the ladies’ coach, about two thirds its length from the front door. The usual and customary way for passengers to alight was from the front end of the coach. The conductor took up the plaintiff’s ticket, and he called the conductor’s attention particularly to his destination and instructed him to be sure and put plaintiff off at Blun. His reason for-this was that while at Swainsboro the plaintiff, who is a practicing physician, had an urgent call to see a patient seven or eight miles below Summertown, where plaintiff lived, and he had telephoned for his automobile to meet
In view of the evidence of the plaintiff, we think it was error, under the former rulings of this court, to grant a nonsuit. In Suber v. Ga. &c. Ry. Co., 96 Ga. 42, 43 (23 S. E. 387), it was said: “It is not necessarily, as a matter of law, negligent for a person to leave a moving train. Whether it is negligent or not in a particular case must depend upon the circumstances of danger attending the act and the special justification which the person leaving the train had for doing so. Ordinarily, in eases of this kind, the question of what is or is not negligence is one for the jury; and unless the danger is obviously great, — as where the train is moving at full speed, — the court can not hold that leaving the train is,, as a matter of law, such negligence as should preclude a recovery..” Turley v. Atlanta &c. Ry. Co., 127 Ga. 594 (56 S. E. 748, 8 L. R. A. (N. S.) 695); Coursey v. Southern Ry. Co., 113 Ga. 297 (38 S. E. 866).
The case of Louisville &c. R. Co. v. Edmondson, 128 Ga. 478 (57 S. E. 877), is different in its facts from the instant case. In that case the plaintiff had entered the car with the knowledge of the conductor, in order to assist on board the cars her seven-year-old child, who was going to Macon as a passenger. As she went inside the car, the conductor, contrary to his usual custom and
Concurrence Opinion
concurring specially. The alleged negligence of the defendant railway company, upon which the plaintiff relied for a recovery, was that the train upon which he was a passenger did not stop at his destination (which destination was known to the conductor) a sufficient length of time for him to alight therefrom. The petition alleged that “on the arrival of the train at Blun [plaintiff’s destination] it came to a halt, and plaintiff arose from his seat, going directly forward to the front end of the coach. .
In Barnett v. East Tenn. &c. Ry. Co., 87 Ga. 766 (13 S. E. 904), it was held: “A declaration alleging that the conductor of a passenger-train agreed with plaintiff to stop the train for him to get off at a point where there was no regular station, but at which defendant’s road crossed another railroad at grade, that plaintiff paid his fare do this point, and that on reaching the same the train only slowed up and did not stop, so that plaintiff, ‘in order to keep from being carried beyond his destination, was compelled to get from the moving train,’ and in so doing was seriously injured, does not set forth a cause of action, it appearing from these allegations that plaintiff’s injury was caused by his own voluntary act in taking a dangerous risk, if the train was moving so rapidly as to make leaving it unsafe, or, if not, that the injury must have resulted from a mere accident, or from plaintiff’s own carelessness in getting off.” This ruling was followed in Jones v. Georgia &c. Ry. Co., 103 Ga. 570 (29 S. E. 927). Some of the other cases in which the same principle has been recognized and followed are the following: Simmons v. Seaboard Air-Line Ry., 120 Ga. 225 (47 S. E. 570, 1 Ann. Cas. 777); Ga. &c. Ry. Co. v. Hutchins, 121 Ga. 317 (48
Although the railway company excepted pendente lite to the overruling of its general demurrer to the petition, it filed no cross-bill of exceptions, and the judgment overruling such demurrer must be treated by this court as a final adjudication that the petition set forth a cause of action; in other words, it was, so long as it stood, the law of this case, and as the evidence introduced on the trial by the plaintiff was amply sufficient -to prove every allegation in the petition, the court-erred in granting a nonsuit. Brooks v. Rawlings, 138 Ga. 310 (75 S. E. 157).