116 Ga. 644 | Ga. | 1902
Emma A. Bullard brought suit against the Southern Railway Company, making in her petition substantially the following allegations: Petitioner is £he mother of Jessie Bullard, who was killed by the running of a passenger-train of the defendant within the corporate limits of the City of Griffin, Georgia, on the 11th day of September, 1900. Plaintiff was largely dependent upon the labor of the deceased for a support, she contributing a stated sum per month for such support. The deceased was killed by being struck by an engine, and the train to which the engine was attached was being run at a high and negligent rate of speed, to wit, from 35 to 40 miles per hour. The killing occurred within 250 yards of where' a street of the city crossed the track east or southeast, and no signal was given of the approach of the train either by the ringing of a bell or the blowing of the whistle. The engine was being run through a populous and thickly settled section of the City of Griffin at a time when and place where people from the different cotton mills were continually passing from their
The defendant demurred to the petition, on the following grounds: Because the petition sets forth no cause of action ; it is apparent from the allegations of the petition that the deceased could, by the exercise of ordinary care, have avoided the accident; the death of the deceased was attributable solely to her own negligence and want of care, it appearing that she was killed at a place where the train could have been seen for a distance of 5.00 yards or more; the accident occurring at a place 250 yards distant from a public crossing, the defendant was under no duty to the deceased, she being a trespasser and a wrong-doer, until she was actually seen by the engineer in charge of the train or until her danger was apparent. The demurrer was sustained and the petition dismissed, and to this the plaintiff excepted.
The foregoing demurrer is general in its character, and involves only the question whether the petition set forth a cause of action; and the determination of this question depends upon whether the defendant has violated any duty which it owed the deceased at the time when and the place where she was killed. It is of but little consequence, under the allegations of the petition, whether the deceased was to be classed as a licensee or a trespasser on the company’s tracks at the place where she was killed. The authorities differ widely both as to when a person is to be treated as a licensee and as to the duty which the railroad company owes to such a person. The rule, however, seems to be very generally recognized that a person is not a licensee unless he has permission, either express or implied, from the company to use the property of the com
But let it be conceded, for the purposes of this discussion, that the deceased was a trespasser, what was the measure of the defendant’s duty to her? Expressions will be found in many of the cases, to the effect that the only duty which a railroad company owes to a trespasser is not to injure him wantonly or wilfully after his presence jn a position of peril lias been discovered. That this statement of thh defendant’s duty is entirely too broad and not applicable to all cases and under all circumstances, was pointed out by Mr. Justice Fish in Crawford v. Railway Co., 106 Ga. 870, and more recently by the writer in Ashworth v. Railway Co., ante, 635, where a full discussion of the subject will be found. It was there held, in substance, that where persons, though trespassers, habitually use the property of a railroad company with the knowledge and without the disapproval of its employees having such property in charge, the railroad company is bound to anticipate that such use of the property will continue; and will not be heard to say, after injury has been inflicted upon one of such trespassers, that it did not know of his presence upon the property. The rule applicable to such a case as the one now being dealt with is thus stated by Hon. John L. Hopkins, in his admirable work on the Law of Personal Injuries of force in this State: “Where no permission is given, but there is a habit on the part of individuals or the public of traveling over the track on foot, and nothing is •done to prevent it, that does not modify ot change the legal rights or obligations of either the public or the company. By such use the public are not tacitly licensed to go upon the track, and the consent of the company to the use is not implied; but the fact that they do go there enters into the situation as it is known to the company, and affects the caution and amount of care required in running the trains.” Hopk. Pers. Inj. § 87, p. 142.
We do not think any decision of this court can be found where it was held that where a person habitually used a passageway
While the failure of the defendant company to observe the statutory requirements as to blowing the whistle and checking the speed of the train may not have been, relatively to the deceased, negligence per se, it was bound to anticipate tbe presence of the deceased at that particular place, and consequently was under a duty to take some steps to prevent injury to her. It was for the jury, and not for the court, to say what was the measure of its duty under all the circumstances of the case. If ordinary care would have required that the whistle be blown, or the bell tolled, and the speed of the train slackened, then the company would be liable for its failure to do these things. Under the allegations of the petition, no precautions whatever were taken to prevent the unfortunate casualty which resulted in the death of the plaintiff’s daughter. In passing upon the question as to what rate of speed and what signals would have met the requirements of ordinary care on the part of the defendant company, the jury will also take into consideration the fact that the killing occurred in a populous lo
Judgment reversed.