48 Ga. App. 382 | Ga. Ct. App. | 1934
John Pressley, for himself and his children, sued the Atlanta and West Point Railroad Company for the homicide of his wife and their mother. The petition was brought in two counts. The first count was based on the lack of ordinary care on the part of the defendant, that is, ordinary negligence, in running over and killing the deceased. This count was dismissed on general demurrer. The second count purported to be based on alleged wilful and wanton negligence on the part of the engineer of the defendant. The defendant filed a general demurrer to the second count, and also filed certain special demurrers; and after amendment to meet some of the grounds of the special demurrers, the court overruled the demurrers, to which ruling the defendant excepted. The case proceeded to trial under the second count, and at the close of the evidence the judge granted a nonsuit. The plaintiff excepted.
The sustaining of the demurrer to the first count, we think, was proper. The general rule is “(1) If a homicide occurs at a place upon the track of a railway company, where it was the duty
There were no allegations in the petition in this case showing any knowledge on the part of the servants of the defendant which would overcome the presumption as to them that the deceased was an adult of normal mental and physical faculties. By the slightest degree of care, that is, the turning of her head to ascertain the oncoming train, she would have prevented the tragedy. We think that the court properly sustained the demurrer to the first count; for it affirmatively appears from the facts pleaded in the petition that her own lack of ordinary care was the proximate cause of her death. See, in this connection, Atlanta & West Point R. Co. v. Pressley, 44 Ga. App. 142 (160 S. E. 663); Southwestern R. Co.
We think the court correctly overruled the general demurrer to the second count of the petition. It was based on wilful and wanton negligence on the part of the engineer of the defendant. Under the principle of law that where wilful and wanton negligence is shown, no amount of contributory negligence, however gross it may be, on the part of the deceased, will bar a recovery, taken with the other facts pleaded in the petition, we think it was sufficient to withstand a general demurrer.
The only remaining question to be decided is whether the judge committed error in granting a nonsuit. The general rule is that a railroad company owes to a trespasser walking upon its tracks the duty not to injure him wilfully or wantonly after his presence is known to its servants in charge of the train; but this duty is not active until his presence is actually known. Southern Ry. Co. v. Eubanks, 117 Ga. 217. The case here proceeded on the theory of wilful and wanton negligence on the part of the defendant. The testimony of Bird, who was the only witness to the homicide, and who was introduced by the plaintiff, was in substance as follows: “I am an engineer on the Atlanta and West Point Railroad. . . I was operating, on December 14, 1929, passenger-train number 31. . . I know where Dixie Mills are. There are two tracks of railroad at Dixie Mills. . . One is the main-line track, and the other is what is known as the M. & B. track. . . There is a public grade-crossing just after you come down by Dixie Cotton Mill. I bloWed the regular signal for that crossing. The blow-post for that crossing is right around the curve there, along there about the Dixie Mills. At that point I could not see up to the crossing. .. . We were then in the city of LaGrange. We were, running about 25 or 30 miles per hour, about the usual speed.. The bell was ringing. . . I first discovered Mrs. Pressley, this lady that was killed, after I got around the curve. At that time she was walking on the M. & B. main line. She was going in the same direction I was going. At the point she was at that time, she was twelve or. fifteen feet away from the railroad-track I was running my train, on. If she had remained on the M. & B. side-track, she could not.
Does this testimony evince on the' part of the servants of the defendant “a wilful intention to inflict the injury,” or was their conduct “so reckless or so charged with indifference to the consequences, where human life or limb was involved, as to justify the jury in finding a wantonness equivalent in spirit to actual intent?” Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562 (63 S. E. 642). Taking the case mathematically, it seems to be almost an irresistible conclusion from the testimony of the engineer that all was done that
Judgment affirmed on main bill of exceptions; cross-bill dismissed.