Southern Railway Co. v. Perkins

17 S.E.2d 95 | Ga. Ct. App. | 1941

Lead Opinion

Sutton, J.

Paragraph 6 of the petition, after amendment, was not subject to the ground of special demurrer, numbered 3, that it did not make clear whether the plaintiff meant to charge actual or constructive knowledge on the part of the “trainmen, employees, servants, and agents” of the defendant as to the presence of the plaintiff at the place alleged. It was plainly alleged that they “saw said children, including the plaintiff.”

The special ground of demurrer, numbered 4, attacking paragraph 8 as irrelevant and immaterial and constituting a conclusion of the pleader without supporting facts to show “wilful and gross negligence,” is without merit. It is elsewhere alleged in the petition that the plaintiff and other children were in full view of the trainmen and that there was nothing to obstruct their view, and in paragraph 8 it was alleged that the plaintiff was “deliberately” run over, paragraph 6 having alleged that the trainmen “saw said children, including the plaintiff.”

The ground of objection in the special demurrer numbered 5, that paragraph 9 of the petition states a conclusion with respect to the knowledge and consent of the defendant, is without*merit.

In paragraph 9 it was alleged that the plaintiff and other children had previously been gathering coal at the place where the plaintiff was run over, as alleged, with the knowledge and consent of the employees and agents of the defendant, and this was known to and consented to by the defendant, the consent to gather said coal as alleged having been given by employees of defendant whose name or names are not known to the plaintiff but are well known to the defendant. This paragraph was attacked by special demurrer, ground number 6, as being too general, vague, and indefinite, it not being set out how or in what manner and by whom the alleged consent was given by the defendant to the plaintiff to be in its switch-yard. While the names of the persons authorized to give such consent need not be set out when the one to whom the consent is given does not know the names, it is necessary that such persons be sufficiently described or identified. Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294, 296 (71 S. E. 421, 36 L. R. A. (N. S.) 1112), See also Riley v. W. & T. Railroad Co., 133 Ga. 413 (65 S. E. 890, 24 L. R. A. (N. S.) 379, 18 Ann. Cas. 208). The plaintiff was only nine years of age at the time of his injury, and, while such a person can not be held to the standard of an adult, he should be required to do as much as furnish some description or identification of the person or persons alleged to have given him consent to pick up coal in the switch-yard of thé defendant. Direction is given, however, that the plaintiff be permitted to amend by setting out a description or identification of the person or persons from whom the alleged consent was obtained, upon failure to do which the allegations as to consent of the defendant be stricken.

In paragraph 10 of the petition it was alleged that the plaintiff was at a place where he had been permitted before to be by the “agents, workmen, employees, trainmen, and servants of the defendant.” A special ground of demurrer, numbered 7, attacks the allegations as being toó general, vague, and indefinite in that it is not made to appear how or in what way permission had been granted or by what authority. These allegations do not deal with any express consent or invitation. Construed in connection with the preceding allegation of the petition that the plaintiff and other children had previously been gathering coal at the place where the plaintiff was injured, its purport is only to the effect that the plaintiff’s presence had not been objected to and should have been anticipated. The allegations are not subject to the objection urged.

A special ground of demurrer, numbered 8, attacks the- allegations of negligence in subparagraph (f) of the petition as being irrelevant and immaterial and not constituting a proper allegation of negligence, for the reason that the plaintiff was not at or near a crossing. The petition shows that, although the plaintiff was not at a crossing but one hundred yards therefrom, the train was approaching the crossing in a populous city and was violating a city ordinance in running at thirty-five miles an hour, and that the speed of the train was not checked when it reached a point about one hundred yards therefrom and at which the plaintiff was gathering coal. The alleged facts are material on the question of other alleged acts of negligence. Macon & Birmingham Railway Co. v. Parker, 127 Ga. 471 (3) (56 S. E. 616). This ground of special demurrer is without merit.

A special ground of demurrer, numbered 9, attacks subparagraph (g) of the petition upon the ground that it is too general, vague, and indefinite, it not appearing therein by whom or by what authority permission was granted the children to pick up coal in the switch-yard. This paragraph does not purport to deal with any express consent or invitation, but goes to the question of anticipation of the plaintiff’s presence under the facts already alleged, and charges the defendant with negligence in failing to exercise ordinary care and diligence for his safety in running the train in the manner theretofore alleged. This ground of demurrer is without merit.

Subparagraph (h) of the petition charges the defendant with negligence in running its train at an excessive rate of speed to the point where the plaintiff was injured when “it saw the plaintiff and the other children or by the exercise of due care and diligence should have seen them.” Special ground of demurrer, numbered 10, attacks the allegations as being too general, vague, and indefinite, in that it is not made to appear whether the plaintiff charges actual or constructive knowledge of the presence of the plaintiff. This ground is well taken, and the court erred in not sustaining it and striking the particular allegations objected to.

Unless the petition is amended to show express consent from an authorized agent of the defendant for the plaintiff to he in its switch-yard he could not be said to have been an invitee or licensee at the time of his injury. “The inference that a railroad company has impliedly invited or impliedly licensed the public to pass across its tracks can not be raised as to a switch-yard, ‘because such an inference is so inconsistent with the continuous use of its tracks for switching purposes as not to admit of the presumption that there is an invitation or permission granted by the railroad to the public.’” Pollard v. Holland, 64 Ga. App. 487 (13 S. E. 2d, 682), and cit. If the petition is amended in the respect mentioned, the defendant would be under the duty of exercising towards the plaintiff as an invitee ordinary care and diligence, and under the allegations of negligence in the present case a cause of action would be set forth.

In the absence of sufficient allegations showing express consent from an authorized agent of the defendant, the petition must be tested, against the general demurrer, by the application of the law as to the duty of a railroad towards a trespasser on its tracks. “Ordinarily the only duty owing by a railway company to a trespasser upon or about its property is not to wantonly or wilfully injure him after his presence has been discovered.” Hammontree v. Southern Railway Co., 45 Ga. App. 728 (165 S. E. 913); Young v. South Georgia Railway Co., 34 Ga. App. 537 (130 S. E. 542); Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592). “The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way of a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute a person so using the track a licensee of the company; and in the absence of the company’s permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser.” Hammontree v. Southern Railway Co., supra; Southern Railway Co. v. Barfield, 112 Ga. 181 (37 S. E. 386). However, “Where a number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, ivho are aware óf this custom, are bound, on a given occasion, to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.” (Italics ours.) Bullard v. Southern Ry. Co., 116 Ga. 644 (43 S. E. 39); Ashworth v. Southern Ry. Co., supra; Western & Atlantic R. Co. v. Michael, 175 Ga. 1, 10 (165 S. E. 37). In dealing with a case where a child was injured while picking up coal on the tracks of a railroad, it was held in Simmons v. Atlanta & West Point R. Co., 46 Ga. App. 93 (166 S. E. 666); “While a railroad company’s agents operating one of its trains are ordinarily not required to anticipate the presence of a child trespasser upon its tracks or property, and the duty of using ordinary care and diligence does not arise until his presence thereon becomes known [citing], where, however, children habitually, with the knowledge and without the disapproval of the railroad company, go upon the tracks of the company at a certain locality to gather coal, there is reason to apprehend that the track in front of a train of the company approaching such locality may not be clear of human beings, and the duty of anticipating the presence of and danger to such children devolves upon the employees of the company operating the train, and they are under a duty to take such precautions to prevent injury to such children as would meet the requirements of ordinary care and diligence.” (Citing.) It was also ruled: “Whether or not the locality, time, and circumstances of an injury to a child using the tracks of the railroad company, and the known habits and frequency of its use by children, create such a condition as will charge the servants of the company operating the train with the special duty of looking out for the presence of a child trespasser at the time and place of the injury, is generally a question for the jury.” In Southern Railway Co. v. Chatman, 124 Ga. 1026 (4) (53 S. E. 692, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675) it was held: “As to a child of tender years, no presumption arises that it will appreciate danger and will act with the discretion of an adult in getting out of the way of an approaching train, and persons in charge of a railway train are not authorized to act on such a presumption.” It is provided in the Code, § 105-204, “Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the- actual circumstances of the occasion and situation under investigation.”

The present petition alleges that the plaintiff and other children had “previously” been gathering coal at the place where he was injured. It is not clear whether by “previously” is meant a custom or habit or an isolated instance, but no special demurrer was interposed by the defendant, and we think that the allegation is sufficient to make a jury question as to whether or not the trainmen should have anticipated the presence of the plaintiff, inasmuch as it is further alleged that he was at a place where he had been permitted before to be by the trainmen, etc. The petition charges specific acts of negligence, sufficient for the consideration of a jury, as to whether or not the defendant’s trainmen failed to exercise ordinary care and diligence towards the plaintiff. A cause of action was set forth, and the court did not err, for reasons above mentioned, in overruling the defendant’s general demurrer.

There is an additional reason why the petition set forth a cause of action. It was alleged that the plaintiff and other children were in full view of the trainmen, that there was no obstacle to prevent them from seeing the children, and that they did see them, including the plaintiff, and that he was deliberately run over. It is thus charged that the trainmen’s acts were wilful and wanton.

Judgment affirmed in part and reversed in part, with direction.

Stephens, P. J., concurs.

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Lead Opinion

1. The allegations of paragraph 9 of the petition do not sufficiently show that express consent was given to the plaintiff, by an authorized agent of the defendant, to be in the switch-yard where the plaintiff was injured, and the court erred in overruling ground 6 of the special demurrer. Direction is given, however, that the plaintiff be allowed to file an amendment describing or identifying the person or persons from whom the alleged consent was obtained; upon the failure to do which the allegations as to consent are stricken.

(a) The court erred in overruling ground 10 of the demurrer, attacking subparagraph (h) of the petition as not showing whether the plaintiff meant to charge actual or constructive knowledge of the presence of the plaintiff upon the tracks of the defendant.

(b) The other special grounds of demurrer are without merit.

2. The petition set forth a cause of action, and the court did not err in overruling the general demurrer.

DECIDED OCTOBER 18, 1941. STATEMENT OF FACTS BY SUTTON, J. Walter Perkins, by his mother, Grace Perkins, as next friend, brought suit against Southern Railway Company, the petition as amended alleging that his mother has the control, custody, and care of the education and training of the plaintiff, and that her husband's whereabouts are unknown; (par. 5) that on June 4, 1940, at or about 2 o'clock in the afternoon the defendant, by its trainmen, employees, servants, and agents was operating a freight train in a direction north or northwest in its railroad yards located on the west side from the center of the City of Atlanta lying along just to the west side of Marietta Street, which train was approaching a street crossing, which is where North Avenue crosses the tracks of the defendant, and that while so approaching said crossing at a rate of speed of about thirty-five miles an hour the bell on the engine of said train was not tolling, no whistle was sounded, and no other kind of warning was given by said trainmen, whose names the plaintiff does not know, and that this was in violation of the laws of Georgia requiring such tolling of the bell, sounding of the whistle, and giving warning to persons who might be on or near crossings of highways; that about said time and place the said train, which was drawn by a large locomotive, reached a point in said yards about one hundred yards south of the place where North Avenue crosses said yards, and at which place the plaintiff was gathering up scattered coal that had been dropped there from loads of coal being operated in and through the yards by railroad companies, and at which time and place the defendant ran the train over the plaintiff, mashed, mangled, cut, and bruised his right leg to the extent that it had to be amputated just below the knee as more particularly described in the petition; (par. 6) that at the time and place mentioned there were four or five other small children picking up coal with the plaintiff, who were in full view of said trainmen, employees, servants, and agents of the defendant operating the train as aforesaid, and were in full view for more than one hundred yards before the train reached the children at the place where they were picking up coal as aforesaid, and the train was not caused to be slowed down or caused to stop, and the speed of the train was not slackened at all before running up to and over the plaintiff, and said trainmen, employees, servants, and agents saw said children, including the plaintiff, in ample time to slow the speed of said train, ample time to stop the same, and failed to exercise any care whatever to prevent running into said children and over the plaintiff; that said trainmen were in full view of the children, including the plaintiff, and there was nothing to obstruct the view of said trainmen, including the engineer, fireman, brakeman, switchman, and other servants and employees of the defendant on said train; (par. 8) that the defendant failed to keep a watchout, and deliberately ran said train over the plaintiff in the way and manner set forth, and that said negligence amounts to wilful and gross negligence; (par. 9) that the plaintiff and other children had previously been gathering coal at the place where the plaintiff was run over, as alleged, with the knowledge and consent of the employees and agents of the defendant, and this was known to and consented to by the defendant, the consent to gather said coal as alleged having been given by employees of defendant whose name or names are not known to the plaintiff but are well known to the defendant, and the defendant knew that said children were likely to be present at any and all hours of the day gathering coal as alleged; (par. 10) that no whistle, gong, or other device was sounded to let the plaintiff know of the approach of the train, and because of great noise in and about the said yards of the defendant the plaintiff could not and did not know of the approach of the train until it was upon him, and that he was at a place where he had been permitted before to be by the agents, workmen, employees, trainmen, and servants of the defendant, and that he did not and could not know that the defendant would suddenly and without any warning or notice to him run the said train upon and over him as alleged; that the said children had authority, as alleged, by the agents of defendant, granted on condition that they could and would keep the tracks and track of defendant clear of accumulation thereon, and on condition that they would report to the agents and servants of the defendant the acts of any person or persons who might take coal from cars parked along the tracks of the defendant; (par. 11) that the plaintiff, because of his tender years, inexperience, and lack of knowledge, is not chargeable with the negligence of an adult, and is chargeable according to his young and inexperienced mind, and that he could have and had no way of contemplating that the defendant would operate a huge locomotive upon and over him; (par. 12) that he was only nine years of age at the time of his injuries and had 49.57 years more to live, according to the Carlisle mortality table. The petition detailed his injuries, expenses to be incurred in the future because of necessary treatment, alleged reduced capacity to labor and earn money after reaching maturity, pain and suffering, alleged that all of his injuries and disability are permanent and the direct and proximate result of the defendant's negligence; that he brings the suit for pain and suffering, loss of ability to work and earn money after he becomes of age, and for money he will have to spend for services of doctors and for medicines, and places his damages in the sum of $20,000 for which he sues.

It was alleged that the defendant was negligent: (a) in allowing the plaintiff and other children to go upon its said yards to pick up coal without warning them of danger; (b) in operating said freight train at a fast and reckless rate of speed at the time and place where the plaintiff was injured, to wit, about thirty miles an hour; (c) in that said trainmen, servants, employees, and agents failed to keep a watchout for children at said time and place where the plaintiff was injured and failed to keep a watchout for the plaintiff before running said train upon him; (d) in running said train upon and over the plaintiff by failing to check the speed of the same and failing to stop the train before running it over him; (e) in injuring the plaintiff as alleged, causing his leg to be amputated, and there causing plaintiff's hurt and damage as aforesaid; (f) in approaching a public city street, to wit, North Avenue, where it crosses the said yards of the defendant and failing to check the speed of the train in approaching the crossing when the train reached a point about one hundred yards therefrom; (g) in failing to exercise ordinary care and diligence for the safety and welfare of the plaintiff and the other children when the defendant knew that it had been permitting children to pick up coal on or in said yard at the time and place the plaintiff was run over as alleged; (h) in running said train at said rate of speed to the point where the plaintiff was run over as aforesaid when it saw the plaintiff and the other children or by the exercise of due care and diligence could and should have seen them; (i) in operating the said train at a rate of speed at about thirty-five miles an hour, in violation of an ordinance of the City of Atlanta which was binding and of force and effect at the time of the plaintiff's injury and which was as follows: "Sec. 2358. Any engineer or other person in charge of an engine or train who shall run same through any part of the city at a greater rate of speed than twenty miles an hour, upon conviction in the recorder's court shall be fined not less than twenty-five dollars for the first offense, fifty dollars for the second offense, seventy-five dollars for the third offense, and one hundred dollars for all succeeding offenses, or thirty days in the city stockade, or both, within the discretion of the court."

To the petition as amended the defendant renewed its general and special demurrers which had been filed to the original petition. The court overruled the demurrers, and the exception is to that judgment. 1. Paragraph 6 of the petition, after amendment, was not subject to the ground of special demurrer, numbered 3, that it did not make clear whether the plaintiff meant to charge actual or constructive knowledge on the part of the "trainmen, employees, servants, and agents" of the defendant as to the presence of the plaintiff at the place alleged. It was plainly alleged that they "saw said children, including the plaintiff."

The special ground of demurrer, numbered 4, attacking paragraph 8 as irrelevant and immaterial and constituting a conclusion of the pleader without supporting facts to show "wilful and gross negligence," is without merit. It is elsewhere alleged in the petition that the plaintiff and other children were in full view of the trainmen and that there was nothing to obstruct their view, and in paragraph 8 it was alleged that the plaintiff was "deliberately" run over, paragraph 6 having alleged that the trainmen "saw said children, including the plaintiff."

The ground of objection in the special demurrer numbered 5, that paragraph 9 of the petition states a conclusion with respect to the knowledge and consent of the defendant, is without merit.

In paragraph 9 it was alleged that the plaintiff and other children had previously been gathering coal at the place where the plaintiff was run over, as alleged, with the knowledge and consent of the employees and agents of the defendant, and this was known to and consented to by the defendant, the consent to gather said coal as alleged having been given by employees of defendant whose name or names are not known to the plaintiff but are well known to the defendant. This paragraph was attacked by special demurrer, ground number 6, as being too general, vague, and indefinite, it not being set out how or in what manner and by whom the alleged consent was given by the defendant to the plaintiff to be in its switch-yard. While the names of the persons authorized to give such consent need not be set out when the one to whom the consent is given does not know the names, it is necessary that such persons be sufficiently described or identified. Atlanta Ice Coal Co. v. Reeves, 136 Ga. 294,296 (71 S.E. 421, 36 L.R.A. (N.S.) 1112). See also Riley v.W. T. Railroad Co., 133 Ga. 413 (65 S.E. 890, 24 L.R.A. (N.S.) 379, 18 Ann. Cas. 208). The plaintiff was only nine years of age at the time of his injury, and, while such a person can not be held to the standard of an adult, he should be required to do as much as furnish some description or identification of the person or persons alleged to have given him consent to pick up coal in the switch-yard of the defendant. Direction is given, however, that the plaintiff be permitted to amend by setting out a description or identification of the person or persons from whom the alleged consent was obtained, upon failure to do which the allegations as to consent of the defendant be stricken.

In paragraph 10 of the petition it was alleged that the plaintiff was at a place where he had been permitted before to be by the "agents, workmen, employees, trainmen, and servants of the defendant." A special ground of demurrer, numbered 7, attacks the allegations as being too general, vague, and indefinite in that it is not made to appear how or in what way permission had been granted or by what authority. These allegations do not deal with any express consent or invitation. Construed in connection with the preceding allegation of the petition that the plaintiff and other children had previously been gathering coal at the place where the plaintiff was injured, its purport is only to the effect that the plaintiff's presence had not been objected to and should have been anticipated. The allegations are not subject to the objection urged.

A special ground of demurrer, numbered 8, attacks the allegations of negligence in subparagraph (f) of the petition as being irrelevant and immaterial and not constituting a proper allegation of negligence, for the reason that the plaintiff was not at or near a crossing. The petition shows that, although the plaintiff was not at a crossing but one hundred yards therefrom, the train was approaching the crossing in a populous city and was violating a city ordinance in running at thirty-five miles an hour, and that the speed of the train was not checked when it reached a point about one hundred yards therefrom and at which the plaintiff was gathering coal. The alleged facts are material on the question of other alleged acts of negligence. Macon Birmingham Railway Co. v. Parker, 127 Ga. 471 (3) (56 S.E. 616). This ground of special demurrer is without merit.

A special ground of demurrer, numbered 9, attacks subparagraph (g) of the petition upon the ground that it is too general, vague, and indefinite, it not appearing therein by whom or by what authority permission was granted the children to pick up coal in the switch-yard. This paragraph does not purport to deal with any express consent or invitation, but goes to the question of anticipation of the plaintiff's presence under the facts already alleged, and charges the defendant with negligence in failing to exercise ordinary care and diligence for his safety in running the train in the manner therefore alleged. This ground of demurrer is without merit.

Subparagraph (h) of the petition charges the defendant with negligence in running its train at an excessive rate of speed to the point where the plaintiff was injured when "it saw the plaintiff and the other children or by the exercise of due care and diligence should have seen them." Special ground of demurrer, numbered 10, attacks the allegations as being too general, vague, and indefinite, in that it is not made to appear whether the plaintiff charges actual or constructive knowledge of the presence of the plaintiff. This ground is well taken, and the court erred in not sustaining it and striking the particular allegations objected to.

2. Unless the petition is amended to show express consent from an authorized agent of the defendant for the plaintiff to be in its switch-yard he could not be said to have been an invitee or licensee at the time of his injury. "The inference that a railroad company has impliedly invited or impliedly licensed the public to pass across its tracks can not be raised as to a switch-yard, `because such an inference is so inconsistent with the continuous use of its tracks for switching purposes as not to admit of the presumption that there is an invitation or permission granted by the railroad to the public.'" Pollard v.Holland, 64 Ga. App. 487 (13 S.E.2d 682), and cit. If the petition is amended in the respect mentioned, the defendant would be under the duty of exercising towards the plaintiff as an invitee ordinary care and diligence, and under the allegations of negligence in the present case a cause of action would be set forth.

In the absence of sufficient allegations showing express consent from an authorized agent of the defendant, the petition must be tested, against the general demurrer, by the application of the law as to the duty of a railroad towards a trespasser on its tracks. "Ordinarily the only duty owing by a railway company to a trespasser upon or about its property is not to wantonly or wilfully injure him after his presence has been discovered."Hammontree v. Southern Railway Co., 45 Ga. App. 728 (165 S.E. 913); Young v. South Georgia Railway Co., 34 Ga. App. 537 (130 S.E. 542); Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S.E. 36, 59 L.R.A. 592). "The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way of a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute a person so using the track a licensee of the company; and in the absence of the company's permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser." Hammontree v. SouthernRailway Co., supra; Southern Railway Co. v. Barfield,112 Ga. 181 (37 S.E. 386). However, "Where a number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who areaware of this custom, are bound, on a given occasion, to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence." (Italics ours.) Bullard v. Southern Ry. Co.,116 Ga. 644 (43 S.E. 39); Ashworth v. Southern Ry. Co., supra; Western Atlantic R. Co. v. Michael, 175 Ga. 1, 10 (165 S.E. 37). In dealing with a case where a child was injured while picking up coal on the tracks of a railroad, it was held inSimmons v. Atlanta West Point R. Co., 46 Ga. App. 93 (166 S.E. 666); "While a railroad company's agents operating one of its trains are ordinarily not required to anticipate the presence of a child trespasser upon its tracks or property, and the duty of using ordinary care and diligence does not arise until his presence thereon becomes known [citing], where, however, children habitually, with the knowledge and without the disapproval of the railroad company, go upon the tracks of the company at a certain locality to gather coal, there is reason to apprehend that the track in front of a train of the company approaching such locality may not be clear of human beings, and the duty of anticipating the presence of and danger to such children devolves upon the employees of the company operating the train, and they are under a duty to take such precautions to prevent injury to such children as would meet the requirements of ordinary care and diligence." (Citing.) It was also ruled: "Whether or not the locality, time, and circumstances of an injury to a child using the tracks of the railroad company, and the known habits and frequency of its use by children, create such a condition as will charge the servants of the company operating the train with the special duty of looking out for the presence of a child trespasser at the time and place of the injury, is generally a question for the jury." In Southern Railway Co. v. Chatman,124 Ga. 1026 (4) (53 S.E. 692, 6 L.R.A. (N.S.) 283, 4 Ann. Cas. 675) it was held: "As to a child of tender years, no presumption arises that it will appreciate danger and will act with the discretion of an adult in getting out of the way of an approaching train, and persons in charge of a railway train are not authorized to act on such a presumption." It is provided in the Code, § 105-204, "Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation."

The present petition alleges that the plaintiff and other children had "previously" been gathering coal at the place where he was injured. It is not clear whether by "previously" is meant a custom or habit or an isolated instance, but no special demurrer was interposed by the defendant, and we think that the allegation is sufficient to make a jury question as to whether or not the trainmen should have anticipated the presence of the plaintiff, inasmuch as it is further alleged that he was at a place where he had been permitted before to be by the trainmen, etc. The petition charges specific acts of negligence, sufficient for the consideration of a jury, as to whether or not the defendant's trainmen failed to exercise ordinary care and diligence towards the plaintiff. A cause of action was set forth, and the court did not err, for reasons above mentioned, in overruling the defendant's general demurrer.

There is an additional reason why the petition set forth a cause of action. It was alleged that the plaintiff and other children were in full view of the trainmen, that there was no obstacle to prevent them from seeing the children, and that they did see them, including the plaintiff, and that he was deliberately run over. It is thus charged that the trainmen's acts were wilful and wanton.

Judgment affirmed in part and reversed in part, withdirection. Stephens, P. J., concurs.

FELTON, J., concurs in all of the rulings except the ruling on ground 10 of the demurrer, as dealt with in the first division of the opinion.

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Concurrence Opinion

Felton, J.,

concurs in all of the rulings except the ruling on ground 10 of the demurrer, as dealt with in the first division of the opinion.