Mrs. Willie Mabel Evans brought suit against the Southern Railway Company and Oscar Ericks, the engineer in charge of the company’s train, for damages on account of the homicide of her husband. The petition was in two counts; the first charging wilful and wanton negligence, and the second simple negligence. The defendants filed separate demurrers, general and special, to both counts, which were overruled. To this ruling the defendants filed exceptions pendente lite, on which error is assigned in the bill of exceptions. After the introduction of the plaintiff’s evidence the court, on motion of defendants, granted a nonsuit as to the first count. The case was submitted to a jury on the second count, and a verdict for $5000 was rendered ip favor of the plaintiff against both defendants. A motion for new trial was overruled, and on this judgment error is assigned.
The second count of the petition' alleged, in part, that on January 8, 1936, at approximately three o’clock in the afternoon, W. Harley Evans, husband of the plaintiff, was killed by being struck by a northbound locomotive engine of the defendant company, which was operated by Oscar Ericks, engineer, and which was pulling only a caboose; that the deceased was killed at a point about one mile north of the city limits of Dalton, while walking along the line of railroad of the defendant company in a northerly direction, going from his place of employment to his home; that
The defendants demurred generally to this count, on the ground that it set out no cause of action; and specially to various paragraphs, on the ground that they were merely conjecture, argumentative, and conclusions of the pleader.
Conceding (but not deciding) that the demurrers to the petition were properly overruled, we think that under the evidence adduced a verdict for the defendants was demanded. The defendants in their answers denied all the allegations of negligence, denied liability, and averred that the death of the deceased was due to his own negligence, and that by the exercise of ordinary care he could have avoided the same. The undisputed evidence shows that the deceased was a trespasser; that his hearing was impaired; that, although knowing that he could not hear well, he was walking along the railroad-track with his back toward the train which struck and killed him; and that he had been warned not to walk
In Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274), the principle laid down in headnote 5 is controlling in the instant case. In the Fulford case the decedent was prevented by noises in the vicinity from hearing the train; and in the instant case the decedent was prevented by his own defective hearing from hearing the train. Paraphrasing headnote 5 of the Fulford case, but not altering the principle of law there laid down, we have the following: The decedent, being at the time of the homicide an adult possessed of normal mental faculties, though he was prevented by his defective hearing from hearing the train which approached him from the rear, could and should have exercised the faculty of sight, by which he would have ascertained upon merely turning his head that the train was approaching. He knew that he was in a place of danger when walking longitudinally along the track, and knew that his defective 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 such care was such gross neglect on his part as to bar a recovery for his death. Knowing that his hearing was defective, he voluntarily exposed himself to danger by getting on the railroad-track and walking thereon without looking back. In Lowe v. Payne, 156 Ga. 312 (118 S. E. 924), it was held that where one voluntarily exposed himself to danger and “was- struck and killed by a train of the railroad company, his voluntary exposure of himself to danger precludes a recovery for the homicide in consequence of the negligence of the railroad company’s agents and employees, in the absence of wilful and wanton negligence on ,the part of the employees of the company engaged in the operation of the train;” and this is true- though the place where the decedent was struck “upon the track was one at which it was the duty of the employees of the defendant company to- have anticipated the presence of pedestrians upon its tracks, and though the jury
Conceding, but not deciding, that the defendants were negligent as alleged, the evidence demanded a finding that the decedent, by the exercise of ordinary care, could have avoided the consequences of that negligence, and avoided the injury to himself; and therefore the court erred in overruling the motion for new trial. This ruling being controlling in the case, the special grounds of the motion are not passed on.
Judgment reversed.