Lowe v. Payne , 156 Ga. 312 ( 1923 )

Hines, J.

Where the plaintiff by the exercise of ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. Civil Code (1910), §§ 2781, 4426. This clearly is the rule where the person injured is the plaintiff and is suing for an injury to his person. This principle is also applicable to cases in which plaintiffs are suing for the homicide of others. In Macon & Western R. Co. v. Johnson, 38 Ga. 409, 431, which was an action by a widow against a railroad company for the homicide of her husband, the court used this language: “ The man who neglects ordinary care to avoid an injury has no right to seek redress, if that injury is produced by the negligence of another; and we see nothing in the character of a railroad company which should subject it to damages for an injury caused by the neglect of its' agents, where the person injured might, by the exercise of ordinary care,' have avoided the consequences to himself.” In Hendricks v. W. & A. R. Co., 52 Ga. 467, this court held that in an action by the wife against a railroad company for the homicide of her husband, any facts and circumstances which would bar a recovery by him for damages, in case he had not died will bar the wife from recovering. In Southwestern R. Co. v. Johnson, 60 Ga. 667, this court said: “As the evidence discloses that plaintiff’s husband, by the exercise of ordinary diligence, could have avoided the injury to himself, even though the defendant was negligent, the verdict finding damages for his widow was contrary to law.” In that case the action was by a widow against the railroad company for the homicide of her husband, who was killed while lying on the defendant’s track at a place where a public road crossed the same; the negligence of the defendant’s employees consisting in failing to blow the whistle and check the speed of the train in approaching this public crossing. Clearly it was the duty of these em-. ployees to anticipate the presence of travelers upon a public-road crossing and to look out for them.

Many decisions of this court could be cited which apply this principle, both where the plaintiffs are the persons injured but not killed, and where the plaintiffs are suing for the homicide of the persons who were injured and killed. The principle has likewise been applied where the injuries were inflicted or the homicides were perpetrated on the tracks of railroads at places where it was the duty of railroad employees to anticipate the presence of persons on their tracks. As to the first class of cases, where the persons injured were not killed, see Stiles v. A. & W. P. R. Co., 65 Ga. 370; Central Railroad v. Brinson, 70 Ga. 207 (3); W. & A. R. Co. v. Bloomingdale, 74 Ga. 604; Southern Ry. Co. v. Blake, 101 Ga. 217 (29 S. E. 288), an injury at a public crossing in a city; Harris v. Southern Ry. Co., 129 Ga. 388 (58 S. E. 873). For cases of the second class, or actions against railroad companies for homicide, in which the foregoing principle has been applied, see Berry v. Northeastern R. Co., 72 Ga. 137; Raden v. Georgia Railroad, 78 Ga. 47; Central R. Co. v. Denson, 84 Ga. 774 (11 S. E. 1039); Atlanta &c. Ry. Co. v. Gravitt, 93 Ga. 369 (5) (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. R. 145); Parish v. W. & A. R. Co., 102 Ga. 285 (29 S. E. 715, 40 L. R. A. 364); W. & A. R. Co. v. Bailey, 105 Ga. 100 (31 S. E. 547); Ga. R. &c. Co. v. Fitzgerald, 108 Ga. 507, 508 (34 S. E. 316, 49 L. R. A. 175); Hopkins v. So. Ry. Co., 110 Ga. 85 (35 S. E. 307); Fowler v. Georgia Railroad Co., 133 Ga. 664 (66 S. E. 900); Moore v. So. Ry. Co., 136 Ga. 872 (72 S. E. 403); Central Ry. Co. v. Tapley, 145 Ga. 792 (5) (89 S. E. 841); N., C. & St. L. Ry. v. Wyette, 146 Ga. 294 (91 S. E. 69); Walker v. W. & A. R. Co., 146 Ga. 296 (91 S. E. 44). But this well-established rule is not without qualification and exception. If the negligence of the employees of the railroad company is so gross as to amount to wanton and willful negligence, such want of ordinary care by the person injured or killed to avoid the consequences of it would be no bar to a recovery for the injury. Central R. Co. v. Denson, and W. & A. R. Co. v. Bailey, supra. In his concurring opinion in the Denson case, Judge Bleckley said: “Against liability for mere negligence resulting in injury or death, the failure of the suffering party in ordinary care, where the disaster could have been shunned by the exercise of such care on his part, will be a defence; but wilful or wanton torts cannot be defended by showing that the victim was a wrong-doer and that he recklessly exposed his own life.” In our opinion this sets forth a sound exception to, the general rule that a person injured can not recover if by the exercise of ordinary care he could have avoided the consequences of the negligence of the employees of the railroad company.

From these and other decisions of this court we deduce these propositions of law, applicable to the case in hand, to wit: (1) If a homicide occurs at a place upon the track of a railway 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. (2) But if the servants of the company were guilty of willful and wanton negligence, which resulted in the homicide of the person killed, then the negligence of the person killed, however gross, will not defeat a recovery of damages for such homicide by a plaintiff who is entitled under the law to sue therefor.

We do not think that the cases of Wright v. Southern Ry. Co., Central Ry. Co. v. Tapley, and Walker v. W. & A. R. Co., supra, conflict with the views above expressed. In the Wright and Walker cases this court was dealing with the question whether it was the duty of the servants of a railroad company to anticipate the presence of persons upon the tracks of the company, where the public had been accustomed to use them with the knowledge and implied consent of the company. In the Tapley case the principle that the negligence of the injured person, amounting to want of ordinary care, would bar a recovery, was distinctly recognized. Under the principles above announced, how should the questions of the Court of Appeals be answered? The deceased was lacking in ordinary care to prevent the consequences to himself of the defendant’s negligence. Southwestern R. Co. v. Johnson, Southwestern R. Co. v. Hankerson, Raden v. Georgia Railroad, Parish v. W. & A. R. Co. Fowler v. Georgia Railroad, Moore v. Southern Ry. Co., supra. This negligence of the decedent precludes a recovery by the plaintiff for his homicide, in the absence of willful and wanton negligence on the part of the servants of the defendant. Construing the .questions propounded by the Court of Appeals to mean that there are no facts or circumstances in the case to show willful and wanton negligence on the part of the servants of the railroad, except their neglect to anticipate the presence of the person killed on the tract, and that the negligence, of these servants amounted to mere negligence, we answer the first question in the affirmative and the second question in the negative.' If these questions should be construed to mean that there were facts and circumstances showing wanton and willful negligence on the part of the servants, we would answer the first question in the negative and the second in the affirmative.

All the Justices concur.