Central of Georgia Railway Co. v. Summers

34 Ga. App. 340 | Ga. Ct. App. | 1925

Bell, J.

(After stating the foregoing facts.)

The defendant has not contended in this court that the trial judge erred in overruling the general demurrer, and the only grounds of the special demurrer insisted upon are summed up in the brief of counsel for the plaintiff in error by the following statement: “The plaintiff, when called on by special demurrer, should have stated how far down the fireman leaned out and how far out he leaned, and should have stated how far out and down he should have leaned, and how far out and down it was the rule or custom for him to lean.” The petition, fairly construed, shows where the plaintiff was standing and how she was holding the hoop whose dimensions were given, and avers that it was necessary for the person receiving the order to lean and reach only far enough to run his arm through the hoop, and that this was customary and usual. This, under the peculiar facts, was a sufficient allegation of how far the fireman ought to have leaned and reached, it not appearing that the plaintiff should have known the exact distance. Likewise, she could hardly have been expected, under the circumstances, to know how much farther he did lean and reach, and she alleged that she did not know. There was no error in overruling the special demurrer. Each of the cases cited by counsel for the plaintiff in error in support of the same is materially different in its facts from the ease under consideration.

The petition alleged that the plaintiff was standing about four feet and ten inches from the nearest rail of the track. Since a pleading is to be construed most strongly against the pleader, this allegation must be construed as alleging a distance of not exceeding four feet and ten inches. The plaintiff is bound by the averments of her declaration, and, although she testified that she stood a greater distance, she could have no advantage by this evidence beyond what she alleged. Her allegations were conclusive evidence against her. Peacock v. Terry, 9 Ga. 137 (6), 150; Hampton v. Thomas, 11 Ga. 317, 320; East Tennessee &c. Ry. Co. v. Kane, 92 Ga. 187 (5) (18 S. E. 18, 22 L. R. A. 315); Kelly y. Strouse, 116 Ga. 872 (5) (43 S. E. 280); New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773 (6) (116 S. E. 922). It is contended by the plaintiff in error that since the petition established conclusively that the plaintiff was standing at a distance of not exceeding four feet and ten inches, or fifty-eight inches, from the nearest rail, and that since the evidence showed that the engine extended thirty-two inches beyond the rail, and that a person on the engine, while endeavoring to receive a train order, as was done in the instant case, would be required, in the usual and necessary way, to hold to a certain rod or grab-iron, and then to extend or lean his entire body beyond the spread of the engine a further distance of twenty-five inches, it appeared without question that the body of the fireman or the person attempting to receive the order would be obliged to pass within at least one inch of the plaintiff’s face, if not to strike it, and that the evidence thus established as a matter of law that the plaintiff voluntarily placed herself in a position of danger. Whether we should agree with this conclusion -if the evidence established without dispute that the facts were as stated, we differ with counsel as to the effect of the evidence. In the first place, only two witnesses testified as to the extent of the engine’s spread beyond the rails. Neither of these witnesses appeared to have examined the particular engine, but each testified from his general knowledge with respect to the width of engines. One or more witnesses testified as to the position an employee on the engine should take in receiving an order, and the testimony of the witness who was most certain upon this point was that “a fireman would ordinarily lean out of the engine twenty or twenty-five inches in taking an order; twenty-five inches would be a reasonable amount.” The testimony of the plaintiff, however, was different, and was sufficient to make an issue at least as to whether it was necessary for the body of the fireman to extend beyond the width of the engine for any distance. She testified: “He is not supposed to project his body out.” It appears that the plaintiff was a person of experience in delivering train orders and in observing positions taken by other employees in receiving them. Her testimony might not have been as worthy of belief as that of the other witnesses, but this court can not pass upon the credibility of witnesses, except in extraordinary cases where, for some exceptional reason, it appears as a matter of law that the witness should not be believed; as, for instance, where testimony is to the existence of facts that are impossible or inherently improbable. Patton v. State, 117 Ga. 230 (43 S. E. 533). The plaintiff further testified that she had stood in that same place and in the same position in delivering orders daily for several years, and had been safe in so doing; that the fireman was not in his usual position on the occasion in question, but his whole body was out of the engine. We find also the following in her testimony: “If he had had his body far enough back in the engine he could have run his arm through the hoop and yet it would have been impossible for him to have struck me. It would have been impossible for him to have reached beyond the hoop and struck me in the face if he had been in the right position.” Moreover, the engineer testified: “They never hang on the grab-irons with their hands and swing their bodies out; they put their arm through the grab-iron and reach their [other] arm out with the elbow bent to catch the order.”

It was inferable, under the evidence, that the hoop is thus caught up, not in the employee’s hand, but in the arm as the train continues onward. Even assuming that the evidence indisputably established that the spread of the engine was thirty-two inches beyond the rail, this still would have left approximately twenty-six inches between the engine and the plaintiff’s face; and, as we have seen, the jury could have found that it was proper for the fireman to extend only his arm, and not his body, into this space. In these circumstances, it can not be held as a matter of law that the plaintiff, as an operator experienced in such matters, assumed a position of evident danger in standing a distance of only twenty-six inches from the train. But it can hardly be said to have been established absolutely that the engine extended for thirty-two inches beyond the rails. As we have already indicated, the two witnesses who testified to this fact were apparently tes-, tifying only as to engines in general; and, besides, each of them was contradicted by the plaintiff (if not also by the engineer) on the material matter as to what would have been the customary position for the fireman to take in receiving the order. The contradiction of their testimony on this question would have been sufficient to make their credibility on the other matters a question for the jury. Under the evidence as a whole, we can not say that the verdict was unauthorized.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.