6 Ga. App. 732 | Ga. Ct. App. | 1909
Linton Howard, by next friend, sued the Augusta Southern Railroad Company to recover damages for personal injuries. The court sustained a general demurrer to his petition; and error is assigned on this ruling. The petition, in substance, is as follows: On March 30, 1908, plaintiff was walking in a northerly direction on a side-track of the defendant company, at a place nearly opposite its depot at ICeysville, Georgia. He was aware of the proximity of defendant’s train in said locality, but, for the reason that immediately prior to the time of the injur3r he had noticed the train back down to a switch which con
We think the allegations of the petition were not sufficient to carry the question of negligence to the jury. Under section 3830 of the Civil Code, a plaintiff is not entitled to recover damages, if, bjr ordinary care, he could have avoided the consequences to himself caused by the defendant’s negligence. The plaintiff in this case alleges that he was aware of the defendant’s engine and cars on the side-track upon which he was walking. He knew that the engine was switching the cars. There appears no reason why he should assume that the train would move on to the main track and would confine its operations to that track; for the nature of the work required of a switch-engine is to move cars on the different tracks of the railroad. When the train was last observed by him, it was on the side-track on which he was walking. The circumstances were such as to put him on notice of the danger of walking on this side-track without keeping a lookout to ascertain the movements of the train.
But we do not think that the defendant’s conduct constituted negligence. It is true that where a railroad company allows pedestrians to use its tracks as a pathway, it generally incurs the obligation of using ordinary care and diligence in anticipating
Judgment affirmed.