Shroeder v. Georgia Railway & Electric Co. , 142 Ga. 173 ( 1914 )

Fish, C. J.

(After stating the foregoing facts.) There was evidence which would authorize the jury to find that the defendant company was negligent at the time plaintiff was injured; and the question here for determination is whether, notwithstanding the defendant’s negligence, the plaintiff was guilty of such negligence as to preclude a recovery. As appears from the evidence for the plaintiff, she and her husband at the time they first saw the car which they desired to board were not at the regular stopping-place or on the north side of the street, where they should have been in order to signal and take the car, but were on the south side of the street about 100 feet away from the stopping-place. After they saw the car coming rapidly over the bridge, plaintiff and her-husband started up the street on the south or left-hand side towards the stopping-place. After going on the sidewalk about 50 feet towards the stopping-place, they stepped off into the street and plaintiff then threw up her hand as a signal for the motorman to stop, at the time looking towards the car and seeing that it was rapidly approaching. She continued on towards the stopping-place, not on the track that the car was on, but on the other track or between the tracks and in a place of safety. From the time plaintiff left the office of the Stocks Coal Company to the time when she was hit by the car, she knew that it was coming. She'had seen it as she left the office, and when within some 50 feet of the crossing she turned and saw it again, and during the whole time knew that it was rapidly 'approaching the crossing, though, she testified, when she looked back just before reaching the crossing she “was under the impression it was stopping.” The car was then some 50 feet from her, and she had some five or six feet further to go before reaching the point for the car to stop. Without looking again to see how far the car was away or to ascertain its speed, she turned just as the car reached her and attempted to cross the track in front of it; and-as she made the first step- towards crossing the track that the car was on, it struck her. In Atlanta Railway & Power Co. v. Owens, 119 Ga. 833 (47 S. E. 213), Justice Cobb, speaking for the court, said: “The ease presented shows that at the time she [the plaintiff] drove upon the track she knew the car was approaching, both from the noise and the light, though her view of the track was obstructed by the wagon. Under such circumstances, any prudent person would have taken some precaution to ascertain how near the car was from the point where the attempt to cross was to be made; and to attempt to cross under the circumstances indicated by the plaintiffs testimony, where she had full knowledge that the car was approaching and did not know how near or how far it was, or at what rate of speed it was running, was such an act of negligence on her part as would preclude a recovery by her. She should at least have taken the precaution to ascertain how near the car was, before attempting to cross the track, when she was on notice, both by the noise and the light of the car, that it was approaching. This seems to be a case where the plaintiff, knowing the danger, deliberately took the risk of being able to cross before the car could reach the point where she intended to cross, and made an error of judgment as to the time that would elapse before the crossing could be made or before the car could reach that point. Such an attempt, under such circumstances, was an act of gross negligence on her part, and evidenced such a lack of prudence as to entirely defeat a recovery by her. . . The plaintiff having, in our opinion, failed to take such precautions for her safety as, under the circumstances, an ordinarily prudent person would have taken, she would not be entitled to recover, notwithstanding the car may have been run at an unlawful rate of speed at the time of the collision.” This language is quite appropriate to the case at bar under its facts. We are of the opinion that the trial judge properly awarded a nonsuit.

Counsel for plaintiff in error cited the case of Harrison v. Georgia Ry. &c. Co., 134 Ga. 718 (68 S. E. 505). The facts in that case were stronger for the plaintiff than those in the present ease are for the plaintiff here. It did not appear in the Harrison ease that Hrs. Harrison, who was killed by the running of a street-car, actually saw the rapidly approaching car; she had on a sunbonnet which may have prevented her from seeing the car. It did appear that her son, who was approaching the crossing where they expected to board the car, was ahead of her, and that he crossed the track and was at the place where it was customary to signal the car to stop, and did so signal it. He was in view of his mother, who was directly approaching him, and the inference could easily have been drawn by the jury that she had the right to assume that the car would be stopped in response to his signal; and this court thought the ease should go to the jury. The rule followed in the Owens case was clearly recognized in the Harrison case. Another case relied on by counsel for plaintiff in error is that of Howard v. Savannah Electric Co., 140 Ga. 482 (79 S. E. 112), where the direction of a verdict for the defendant was reversed by this court. In the opinion in that case it was said that “the petition did not allege, nor did the evidence show, that the deceased ever saw the approaching car before he stepped upon the track where he was struck.” In that ease it did not appear that the plaintiff knew of the approaching car which struck him or had any knowledge that any danger was imminent when he undertook to cross the track of the defendant company. The case at bar is also distinguishable from that of Columbus Railroad Co. v. Asbell, 133 Ga. 573 (66 S. E. 902). In that case it did not appear that the person run over by a street-car knew of the approach of the car which struck him. There was no evidence that he saw or heard it. He had just alighted from one car of the defendant company; and though he undertook to see if a car was approaching, he could not do so on account of a shadow produced by an electric street light, 'and there was evidence that the rumbling noise of the car from which he alighted prevented him from hearing the approaching car.

Judgment affirmed.

All the Justices concur.