117 Ga. 767 | Ga. | 1903
The question presented for decision in this case is whether or not the trial court erred in overruling a demurrer to the plaintiff’s petition. The suit was instituted in her name by W. D. Priest as her next friend, and was predicated upon the following allegations of fact: The defendant railway company has a passenger and freight depot in the city of Eome, Ga., which “ is surrounded by platforms, yards, and railroad tracks, upon which tracks cars and engines are run and operated, and in, upon, and across which passengers and the public generally are accustomed and allowed to pass.” On the 25th of February, 1902, the plaintiff, who was then twelve years of age, went with her brother, who was a year older, to the company’s depot. On one of the adjacent tracks were standing two or three freight-cars. “ Being young and indiscreet children, and being unconscious of any danger, by reason of their tender years, and no engine or cars being then in sight or hearing, they climbed upon said cars and there remained,- in full view of all passers-by and in sight of the operatives, servants, and agents of the defendant, had they been in the exercise of any care or diligence. After petitioner and her brother had been upon said cars for some time, petitioner’s attention was suddenly arrested by an engine which had approached near to said cars from the south; and as said engine continued to approach the car upon which tioner was standing, one of the servants or agents of defendant called loudly to petitioner, ‘Get down off of that car, or you will be killed.’ Petitioner became very much alarmed and excited by reason of the approaching engine and the harsh, loud order to get off said car, as aforesaid; and believing that she was in very great danger and peril, to save herself from the danger apprehended by a collision between the car upon which she was standing and the approaching engine, she jumped from said car to the ground,” a distance of about twelve feet, and broke one of the bones in her left leg near the ankle. The plaintiff s position on the car was in full view of “ those in charge of said engine and those on the ground, and she could have been readily seen or observed in the exercise of any care whatever on their part, but ... no signal was given of the approach of said engine to said car, and no effort on the part
Doubtless the plaintiff’s petition was sufficiently full and explicit, as thus amended, respecting the identity of the employees of whose conduct she complained. See Woodson v. Johnston, 109 Ga. 454. The general ground of the demurrer should, however, have been sustained. On the argument before this court, counsel for the defendant in error very properly conceded that she was a trespasser upon the premises of the defendant company. Though a child only twelve years of age may oftentimes occupy a much better position than would an adult under similar circumstances, in that a plea of tender years can be made to a charge of contributory negligence on the part of a child, yet it remains true that a trespasser, be he man or infant, is not legally entitled to complain of lack of diligence on the part of a third person which falls short of gross negligence. See, in this connection, the full and able discussion of this subject and the authorities cited in the opinion delivered by Mr. Justice Fish, in S., F. & W. R. Co. v. Beavers, 113 Ga. 398. Under the facts disclosed by the plaintiff’s petition, the company was certainly not liable on the idea that its servants did not sooner discover her presence on top of the car, notwithstanding she was in full view and might have been seen by them had they been in the exercise of ordinary care. Underwood v. W. & A. R. Co., 105 Ga. 48, 50; Grady v. Georgia R. Co., 112 Ga. 668, and cases, cited. This is so for the reason that the company owed no duty to her until her presence actually became known to its servants. A. & C. Air-line R. Co. v. Gravitt, 93 Ga. 370; S., F. & W. R.
Judgment reversed.