25 Ga. App. 730 | Ga. Ct. App. | 1920
1. Whether the frequent and continued use of the right of way of the railroad at the point where the deceased met his death was such as to require the railroad company to anticipate the presence of pedestrians on or near the track, and whether, with such- notice and resulting duty, ordinary care was exercised on the part of the railroad company, are questions of fact for determination by a jury. Central of Georgia Ry. Co. v. Thompson, ante, 715 (104 S. E. 515), and cit.
2. While it is true that a railroad-track is a place of danger, and one who trespasses thereon is guilty of negligence, yet when the railroad company discovers this negligence, or has reason to anticipate it, and such a trespasser is on the track in an apparently helpless condition, ordinary diligence requires the use of every means then available to avoid running down and killing him; and if, under such circumstances, this degree of care is not exercised, and death results, the killing will be deemed in law to have been wilful and wanton. Contributory negligence on the part of even a trespasser will not defeat a recovery for a wanton homicide. Central of Georgia Ry. Co. v. Thompson, supra.
4. The allegations of the petition as amended bring this case within the principles announced above, sufficiently to withstand the demurrers interposed.
5. However, where a suit for damages was brought against a railroad company for an injury occurring while the railroad was under government control, the director-general of railroads was a proper party defendant to the suit, and he coulcLbe made such by amendment; and when, at the time the case came on to be heard on demurrer, the control of the railroad had been turned back to the owners and an agent had been appointed by the President of the United States to represent the government in all cases arising while the railroad was under government control, it was proper that the agent so appointed should be a party defendant to the suit, and he could be made such by amendment. The judgment of the court below is therefore affirmed, with direction that the plaintiff be allowed to make thei agent a party defendant, by amending her petition.
Judgment affirmed, with direction.