33 Ga. App. 710 | Ga. Ct. App. | 1925
1. A boy fourteen years of age is presumptively chargeable with the same standard of diligence for his own safety as an adult. Central of Georgia Ry. Co. v. Hartley, 25 Ga. App. 110 (6) (103 S.
2. Tliis case, in respect to all questions raised by the "general demurrer, is controlled by the decision of the Supremo Court in Lowe v. Payne, 156 Ga. 312 (121 S. E. 812), and the decision recently rendered by this court in Atlantic Coast Line R. Co. v. Fulford, ante, 631, in which last-named case one of the rulings here applicable was predicated upon instructions received from the Supreme Court in answer to questions certified. The petition when fairly construed does not allege a wilful or wanton killing. The defendant being charged with negligence only, and the petition disclosing that the decedents voluntarily sat down upon the railroad-track and there remained until they fell asleep, it affirmatively appears that they were guilty of such negligence or failure to exercise 'Care for their safety as to bar a recovery for their homicide. Eor this reason the petition was subject to the general demurrer interposed. See, in this connection, Southwestern Railroad v. Hankerson, 61 Ga. 114; Wilds v. Brunswick & Western R. Co., 82 Ga. 667 (9 S. E. 595); Central R. Co. v. Smith, 87 Ga. 694 (3 S. E. 397); Southern Ry. Co. v. Hogan, 131 Ga. 157 (1) (62 S. E. 64).
3. Since it is held that the judge erred in overruling the general demurrer, it is unnecessary to examine or pass upon the special demurrers. Columbus R. Co. v. City Mills Co., 135 Ga. 626 (4) (70 S. E. 242); Dellinger v. Elm City Cotton Mills, 26 Ga. App. 780 (107 S. E. 264).
Judgment reversed.
