54 Ga. App. 164 | Ga. Ct. App. | 1936
Lead Opinion
1. The act of a trespasser in going upon a railroad-track and walking along the track with his back to a moving train approaching from the rear which he did not see or hear because his attention was attracted to another train passing on a parallel track twelve or fifteen feet from him and he was engrossed in watching this train and in keeping a safe distance from it, was not, as a matter of law, negligence which bars a recovery for his homicide caused by his being run over by the approaching train, when, according to established usage and a custom known to the
2. Where, at a place where a pedestrian walking along a railroad-track was killed by an approaching train, pedestrians customarily, with the knowledge of the agents of the railroad company in the operation of the train, walked along the track, the engineer was under a duty to exercise ordinary care in anticipating the deceased's presence upon the track and to take reasonable precautions not to injure Mm; and it is a question of fact whether the engineer of the train was guilty of negligence proximately causing the homicide, in failing in the daytime to see the deceased on the track, and in failing to give him warning of the approach of the train by ringing the bell or blowing the whistle, and in operating the train at a dangerous rate of speed under the circumstances. Ashworth v. Southern Railway Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592); Bullard v. Southern Railway Co., 116 Ga. 644 (43 S. E. 39); Western & Atlantic Railroad Co. v. Michael, 175 Ga. 1 (6) (165 S. E. 37); Central of Georgia Railway Co. v. Thompson, 25 Ga. App. 715 (104 S. E. 515); Southern Railway Co. v. Slaton, 41 Ga. App. 759 (2), 762 (154 S. E. 718).
3. In a suit by the wife of the deceased against the railroad company, to recover damages for the homicide, the petition in count 2, under the above rulings, set out a cause of action, and the court erred in sustaining the general demurrer thereto. The court having erred in sustaining the demurrer to count 2 of the petition, the subsequent proceedings, which resulted in the grant of a nonsuit on the trial of the case under count 1, which alleged that the husband of the plaintiff was killed by the wilful and wanton conduct of the agents of the defendant in the operation of the train, were nugatory.
Judgment reversed.
Dissenting Opinion
dissenting. In my opinion the court did not err in sustaining the general demurrer to count 2 of the petition, upon which ruling the majority opinion reverses the judgment. This ' count does not charge actual knowledge by the railroad company of the decedent’s presence on its track, nor does it charge wilful or wanton misconduct on the defendant’s part. It is well recognized that ordinarily the only duty which a railroad company owes to a trespasser upon or about its property is not to injure him wantonly or wilfully after his'presence has become actually known; but the failure to take proper and needful steps for his protection after his presence is known may amount to wilful and wanton misconduct. I think it has become well settled by the decision in Lowe v. Payne, 156 Ga. 312 (supra), that, in the absence of actual knowledge of the presence of the trespasser on the track at the time and place of the injury, the fact that it was the duty of the railroad company to anticipate that trespassers might-be present on the track at the place of the injury, and that a failure to do so might amount to a lack of ordinary care, is not the equivalent of actual knowledge in the sense that such -failure would constitute wilful and wanton misconduct. Before the rendition of the Lowe decision, this court, in . Tice v. Central of Ga. Ry. Co., 25 Ga. App. 346 (103 S. E. 216), placed a failure to apprehend the presence of a trespasser, at a time when and a place where it was incumbent on the railroad to do so, upon the same footing as actual knowledge of his presence. This court so interpreted certain Supreme Court decisions, among which was Wright v. Southern Ry. Co., 139 Ga. 448, 450 (77 S. E. 384). Subsequently to the Lowe decision, however, the decisions have been uniform to the effect that failure to anticipate and discover the presence of the trespasser at a time when and place where it was the railroad’s duty to do so would not of itself amount to wilful and wanton misconduct. In fact the amended count 2 of the petition seems to recognize this principle of law; and not having charged actual knowledge of the decedent’s presence, it does not charge- wilful or wanton misconduct on the part of the railroad. Accordingly, it would appear perfectly plain that, if the decedent himself was guilty of lack of ordinary care in trespassing upon the railroad track in the manner set forth, the mere negligence of the railroad in failing to anticipate and thereafter actually ascertain his presence at the time and place of the injury would not authorize