57 Ga. App. 777 | Ga. Ct. App. | 1938
Lead Opinion
The widow of the deceased brought suit against a railroad company for the homicide of her husband, who, when walking along the pathway between the west spur track and the main track, at a place other than a public crossing or highway, although between two public crossings in the City of Eossville, was struck and killed by the defendant’s locomotive. The status of the deceased at the time he was killed was that of a trespasser. Potts v. Southern Ry. Co., 47 Ga. App. 268 (170 S. E. 319).
The first count of the petition alleged ordinary negligence. “If a homicide occurs at a place upon the track of a railroad company, where it was the duty of the servants of the company to anticipate the presence of persons on the track, and their failure to so anticipate the presence of others thereon amounts to mere negligence, the negligence of the person killed, under such circumstances, amounting to the lack of ordinary care for his safety, and where the person killed could by the exercise of ordinary care have avoided the consequences to himself of such negligence of the servants of the company, will prevent a recovery by a plaintiff who sues for such homicide.” Lowe v. Payne, 156 Ga. 312, 316 (118 S. E. 924). This is true even though some of the negligent acts of the company were violations of the city ordinance, which violations would be negligence per se. Briefly stated the alleged negligence is: “(1) a failure to keep and maintain a constant and vigilant lookout ahead, and a failure to discover the presence of the deceased; (2) failure to blow the whistle, ring the bell, or give any other warning signal; (3) violation of a city speed ordinance; (4) violation of a city ordinance requiring the ringing of the bell
The deceased at the time of the homicide was a strong, able-bodied man, forty-four years of age, in good health in body and mind, and had an expectancy of 25.09 years. He was an expert mechanic by trade and was capable of earning $1920 per year. However, he was "a little hard of hearing,” but he could and should have exercised the faculty of sight by which he would have discovered that the train was approaching by merely turning his head. He knew he was in a place of danger when he was walking longitudinally along the track. He knew that his being “a little hard of hearing” would interfere with his hearing an approaching train, and consequently the slightest degree of care on his part would have required him to look in the direction from which the danger might come, and a failure to exercise this care was such gross negligence upon the part of the deceased as to bar a recovery for his death. The court did not err in sustaining the general demurrer to count one of the petition. Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274). In connection with the deceased being "a little hard of hearing,” see Southern Ry. Co. v. Evans, 56 Ga. App. 177, 180 (192 S. E. 505); Kennemer v. Western & Atlantic R., 42 Ga. App. 266 (155 S. E. 771).
We now come to count two of the petition which is based on the theory of wilful and wanton negligence. The rule that one, himself guilty of a lack of ordinary care, can not recover for injuries sustained by the negligence of another, does not extend to
In the first case it was alleged that the deceased suddenly turned from a spur track to go on to the main track, and was not in a place of peril until he left the spur track, the place of safety where he was when the engineer first saw him. It affirmatively appeared that as soon as the deceased got so- close to the track as to be in danger of the oncoming train the engineer immediately blew his whistle, and immediately after realizing that the deceased did not heed his warning he made every effort to stop his train, therefore the engineer could not be charged with wilful and wanton negli
While this court in the Humphries case, supra, quoted with approval Hammontree v. So. Ry. Co., 45 Ga. App. 728 (165 S. E. 913), that “a failure to exercise ordinary care to prevent injury to a trespasser after his presence has become actually known may amount to wantonness,” yet, the controlling question, relative to the count on wilful and wanton negligence in the Pressley case, the Himphries case, the case at bar, and in all cases where such a count in the petition sought to recover for wilful and wanton negligence, was not whether the agents failed to exercise ordinary care, extraordinary care, or slight care after the presence of the trespasser was actually known, but whether the failure to give the warning, such as the blowing of the whistle or the ringing of the bell, was such a circumstance as'might, along with other circumstances, authorize the jury to find that the agents were guilty of wilful negligence, which is. “wilful intention to inflict injury,” or wanton negligence, which is “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.’” Pressley v. Atlanta & West Point R. Co., supra. We think the failure to blow the whistle or ring the bell should be given the same consideration with respect to the whole count as we would give it whether it be denominated ordinary negligence, or a failure to exercise ordinary care, or by whatever name we may call it. It seems to us that the special difficulty may to some degree disappear if the circumstance is considered strictly on the ground of its relationship to the issue on trial, to wit, wilful and wanton negligence, regardless of the fact that the particular circumstance of the failure to blow the whistle or ring the bell may incidentally show some other kind of negligence. The defendant is not liable merely because he failed to exercise that degree of care that would prevent the injury. Louisville & Nashville R. Co. v. Rogers, 136 Ga. 674 (71 S. E. 1102). The mere failure to blow the whistle or ring the bell after the deceased is seen on the track
The case of Fox v. Pollard, 52 Ga. App. 545 (183 S. E. 854), is distinguishable from the instant case, for in that case it was alleged that when the defendant’s agent first saw the deceased, he was on the track walking with his head down, paying no attention, and apparently unaware of the approaching train, and it was alleged that the engineer did not give him any warning of the approach of the train, and he was therefore in a place of peril and so remained until he was injured. Thus, in that case, the defendant’s agent had time to warn the deceased by blowing the whistle and ringing the bell after it was apparent that the deceased was in a place of peril. There is a general allegation that the deceased was in a place of peril, and theri the petition undertakes to set up preliminary facts, which the plaintiff claims establish this general allegation, by stating that the deceased was on a path between the main track, upon which the train was approaching, and a spur track (that is, the deceased was not on the track on which the train was running), which path might or might not have been a place of peril at the time the engineer first saw him. Construing the pleadings most strongly against the pleader, there is no allegation in the second count as amended that the deceased was on the track or so close thereto that the train in passing would necessarily strike or injure him. Thus the pleader does not merely allege the ultimate fact that the deceased was in a place of peril, but undertakes to set out the preliminary facts which he claims established the ultimate fact, and from these preliminary facts there is no inference as to when or at what time the deceased got into a place of peril. Lewis v. Amorous, 3 Ga. App. 50, 53 (59 S. E. 338); Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695, 699 (50 S. E. 974). And there are no facts alleged to show that the engineer had time to blow the whistle or ring the bell before injuring the deceased after discovering he was in a place of peril other than the general allegations to that effect. Atlanta & West Point R. Co. v.
The writer thinks that in this case the court at one and the same time (and for the only time), passed on a demurrer con-
Judgment affirmed.
Rehearing
dissenting. The judge made but one ruling on the demurrers, and passed but one order with reference to the overruling of the demurrers, which was when he signed the general order overruling all demurrers both general and special; and the defendant, in reference to this one and only ruling on the demurrers, never had an opportunity to amend to meet the ruling of the court. I think he should have had at least one opportunity to
Rehearing
ON MOTION DOR REHEARING.
Where a petition is lacking in substance and is subject to a general demurrer, the judge need not give the plaintiff opportunity'to amend before sustaining the demurrer. Ripley v. Eady, supra. As we pointed out in the original opinion, the petition was subject to the general demurrer filed on March 4, although the petition was amendable. Ellison v. Ga. R. Co., 87 Ga. 691 (13 S. E. 809). No amendment seeking to cure the defect in the petition was offered at any time. An amendment was offered, but it was not sufficient to render the petition good as against the general demurrer. The court therefore acted properly in sustaining the demurrer.
Behea/ring denied.