3 Ga. App. 272 | Ga. Ct. App. | 1907
The defendant in error brought an action against the Georgia Railroad & Banking Company for damages accruing to her by reason of the homicide of her husband. The defendant (now plaintiff in error) demurred to the plaintiff’s petition, and it excepts to the judgment overruling the demurrer. We think the court erred in overruling the demurrer. Under the allegations of
It is not alleged that the plaintiff’s husband intended to cross the track. He appears to have been walking on a path on the defendant’s right of way, which ran very near the track. According to the allegations of the petition, he stooped down to tie his shoe and was struck by the train. It necessarily follows that he must have had his head extended over some portion of' the track, and apparently he exercised no diligence in his own behalf to avoid the injury which overtook him. Under the holding in Central R. Co. v. Raiford, 82 Ga. 405 (9 S. E. 169), the obligation of a railroad company towards one using a path running along the track on the right of way is no greater than that of one using any other portion of the right of way. While it seems to’ be anomalous that a plaintiff can recover by showing the injury, if the presumption of negligence arising against the railroad company is not rebutted, without proving the specific allegations of negligence contained in his petition, still, specific acts of negligence upon which he expects to recover must be alleged. As held by the Supreme Court in South
Furthermore, it appears, from the allegations of the petition, that there was a public street parallel with the railroad right of way, which the deceased could have used and thus have avoided the injury. Or even if he had chosen to use the pathway where he was killed, the allegations of the petition, so far from negativing the idea that the deceased, by the exercise of ordinary care, could have avoided the injury, make it apparent that if he had used his senses of sight and hearing in. his own behalf in an ordinarily diligent way, the casualty could have been prevented. Cen. R. Co. v. Smith, 78 Ga. 694 (3 S. E. 397); Wilds v. B. & W. R. Co., 82 Ga. 667 (9 S. E. 595); Cen. R. Co. v. Smith, 82 Ga. 804 (10 S. E. 111); W. & A. R. Co. v. Ferguson, 113 Ga. 713 (39 S. E. 306, 54 L. R. A. 802). As said by the Supreme Court in Lloyd v. Ry. Co., 110 Ga. 167 (35 S. E. 170), the track itself is an intimation of danger to one walking upon a railroad track, and he should exercise ordinary care in looking and listening for the approach of a train or locomotive. If he fails to do this and is injured, he can not recover. No reason is alleged in the petition why the husband of the plaintiff did not or could not see and hear the approaching train, except that the bell was not rung. It is not alleged that those in charge of the train saw the deceased and failed, after seeing him, to use all necessary precautions for his safety. Under the decision in the Gravitt case and others cited above, the company owed the deceased no duty of checking the train or tolling the bell. While the writer personally does not sympathize with the principle announced in these decisions, still, as a matter of law, we are bound thereby. This ease would seem to be controlled by
For these reasons the demurrer should have been sustained and the petition dismissed. ’ Judgment reversed.