Southern Railway Co. v. Hogan
62 S.E. 64
Ga.
1908
Check Treatment
Fish, C. J.

(After stating the foregoing facts.)

Under the evidence in this case, viewed in the light most favorable to the plaintiff, we think it clear that a verdict in his behalf was wholly unwarranted. That no person can recover damages from a railroad company for injuries to himself or his property, where the same are caused by his own negligence, or where by ordinary care he could have avoided the consequences to himself caused by the company’s negligence, are familiar declarations of our Civil Code (§§2322, 3830) which have been applied by this court in a great number of cases. We will refer to only a few of them, which we consider to be directly in point here. In Samples v. Atlanta, 95 Ga. 110, at page 112 (22 S. E. 136), Justice Lumpkin refers to “the well-known rule of law that one who voluntarily attempts a rash, imprudent, and dangerous undertaking is to be presumed to have assumed the risk incident thereto, and can not afterwards complain if he is injured.” So, in City of Columbus v. Griggs; 113 Ga. 597 (38 S. E. 953, 84 Am. St. R. 257), it was held: “One who knowingly and voluntarily takes a risk of physical in*160jury the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter’s negligence.” It was said in the opinion: “Certainly a man can not heedlessly rush into grave peril of the existence of which he is perfectly aware, and then hold any one else, whether negligent or not, responsible for the consequences.” Again, in Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802), Justice Cobb, delivering the opinion, at page 712, said: “If at the time of the injury an ordinarily prudent person, in the exercise of that degree of care' and caution which such a person generally uses, would have reasonably apprehended that the defendant might be negligent at the time when and place where the injury occurred, and, so apprehending the probability of the existence of such negligence, could have taken steps to prevent the injury, then the person injured can not recover, if he failed to exercise that degree of care and caution usually exercised by an ordinarily prudent person to ascertain whether the negligence which might have been reasonably apprehended really existed.” Citing a number of eases. And further the learned Justice said: “If there is anything present at the time and place of the injury which would cause an ordinarily prudent person to reasonably apprehend the probability, even if not the possibility, of danger to him in doing an act which he is about to perform, then he must take such steps as an ordinarily prudent person would take to ascertain whether such danger exists, as well as to avoid the consequences of the same after its existence is ascertained; and if he fails to do this, and is injured, he will not be allowed to recover, if by taking proper precautions he could have avoided the consequences of the negligence of the person inflicting the injury.” Another case directly in point is Mansfield v. Richardson, 118 Ga. 250 (45 S. E. 269), wherein it was held: “In cases of personal injuries, the plaintiff as a conscious human agent is bound to exercise ordinary care to avoid the consequences of the defendant’s negligence, by remaining away, going away, or getting out of the way of a probable or known danger.” And that “lie can ‘avoid’ danger by refraining from going into what he knows is an unsafe place.” On the same line are, May *161v. Central R. Co., 80 Ga. 363 (4 S. E. 330); Atlanta & Charlotte R. Co. v. Leach, 91 Ga. 419 (17 S. E. 619, 44 Am. St. R. 47); Evans v. Charleston R. Co., 108 Ga. 270 (33 S. E. 901); Hides v. Georgia Southern R. Co., 108 Ga. 304 (32 S. E. 880); Steele v. Central R. Co., 123 Ga. 237 (51 S. E. 438), and cases cited.

As to the other features of the present case, the rulings made in the following • cases are controlling. In Coleman v. Wrightsville R. Co., 114 Ga. 386 (40 S. E. 247), it was held: “A railroad company is under no duty to a person unloading merchandise from a car on a side-track to a wagon, to which a horse is hitched, to comply with the requirements of the Civil Code, §2224, respecting the giving of signals and checking the speed of the train before reaching a public crossing.” And in Chalkley v. Central Ry. Co., 120 Ga. 683 (48 S. E. 194), the well-settled rule was stated, that “Where a railroad company’s servants make unusual noises in the operation of one of its trains, and there is no necessity for the making of such noises, the company is liable for injuries resulting in consequence thereof. [Citing cases.] But unless it is shown that the noise made was unusual and unnecessary at the time when and place where it was made, the railroad company will not be liable in damages to the person injured, even though such noise was the proximate cause of the injury.” Citing cases. In the present case, the plaintiff attempted a rash, imprudent, and dangerous undertaking. He admitted on the trial that he knew that it was risky, and that it was dangerous if he failed to get the usual warnings of the approach of the train. He knew it was perfectly safe to load from the other side, and his driver informed him that he preferred to load from the other side because of the danger of going between the tracks, and testified that plaintiff’s son had suggested to him to load from 'the other side. Plaintiff’s witnesses testified that driving between the tracks to load was obviously dangerous to any one. Plaintiff must have known that, even if the opinion which the young man in the office gave him as to the length of time before another train would n-jss .should be correct, he would have barely time before its arrival in which xo drive in between the tracks, transfer the wood from his wagon to the car, and drive his team out to a place of safety. Besides, he had reason to apprehend that the supposition of his informant as to such time might prove to be unreliable, as he had, on the same day, *162given him wrong information as to the time when the next train would arrive, by reason of which plaintiff had been caught, upon the arrival of the train, in the same close place; and he knew, from his experience then, that it might be impossible to control. his mule, if the team were again there when a train passed by. From this very recent experience, he ought to have known that he could neither rely upon the. supposition given him as to the time before another train would arrive, nor upon his Ability to control his mule in case the train should pass while the wagon and team were between the tracks. According to plaintiff’s own testimony, there was no necessity whatever for his taking the risk that he did; for he testified that he drove in and loaded from between the tracks because it was easier for him to load from there and he could save time by doing so. Failure of the railroad company to comply with the statute as to signals, etc., in reference to public crossings, was not negligence relatively to the plaintiff, and there was no evidence that any unusual and unnecessary noise was made by the train which frightened his mule, whose efforts to run away caused the train to come in contact with the wagon and team, resulting in the damages for which the actions were brought. The plaintiff having knowingly and voluntarily taken the risk of so obvious a danger, and the act of taking it being so manifestly a failure to exercise ordinary care and diligence for his own safety and that of his property, he -could not hold the railroad, company liable for the resulting damages, and the court should have granted a new trial on the general ground that the verdict was without evidence to support it. There are many grounds in the motion for a new trial, but it is unnecessary to deal with the others specifically.

Judgment reversed.

All the Justices concur.