North Augusta Electric & Improvement Co. v. Martin , 118 Ga. 622 ( 1903 )

Simmons, C. J.

Where a petition shows the jurisdiction, of the court, that the-defendant was under a duty to the plaintiff, and the facts from which the duty arose, that there was a breach of the duty, and that plaintiff was damaged by such breach, the petition sets out a cause of action and is good as-against a general demurrer. Judgment affirmed.

By jive Justices.

The petition alleged, that the defendant was a corporation operating a street-railroad for the transportation of passengers in the county in which the suit was brought, that on a specified day and hour he was a passenger on one of its cars; that on previous occasions he had been such passenger, and was in the habit, in order to reach his place of residence, of alighting from the cars at a point where the road was crossed by a designated street,— a habit. known to the mortorman in charge of the car at the time specified ; that a custom exists with the defendant to merely put on brakes, and slacken speed to allow male passengers to alight from the cars, unless the passenger insists on the car coming to a positive stop, before leaving it, and there is no' danger to a male passenger in stepping from a car under control in this manner; that at the time-specified, the car on which plaintiff was a passenger reached the-place designated, and he signaled, as had been his custom, to the motorman and conductor to slow up and let him get off the car, and the motorman and conductor recognized the signal and in response put on brakes, and the car slackened its speed until it was safe for him to step off, when, just as he was in the act of stepping-from the running step along the side of the car, the motorman caused the car to give a sudden, unexpected, violent jerk, which threw him, with a twist of his body, prostrate to the ground, the-force of the fall breaking his arm and causing other injuries described ; that these injuries were received through the gross negligence of the defendant; and that he was thereby damaged in a sum specified. A general demurrer to the petition was sustained, and the plaintiff excepted.

George T. Jackson and E. II Callaway, for plaintiff in error.

No allegation that plaintiff by ordinary care could not have-avoided the consequences of defendant’s negligence: Civil Code, §§ 2322,3830; Ga. Rep. 38/409; 79/463 (2); 87/6; 95/519;, 96/328; 101/217; 104/244; 107/382. Not alleged that the jerk was unnecessary, or unnecessarily severe, nor that the motorman was under duty not to cause it, nor that he was under duty to give plaintiff notice; Ga. Rep. 73/350, 557; 77/788; 101/69; 108/808; 50/353. Taking pleadings most strongly against him, injury was the result of plaintiff’s own negligence; Ga. Rep. 50/353,357; 81/476,478; 82/229 ; 85/653; 87/766; 88/436 94/662; 107/132; 36 Atl. 867; 5 Am. Elec. Cas. 416. 118 Ga. 146, not applicable.

F. W. Capers and W. E. Jackson, contra, cited.

Civil Code, § 3830; Ga. Rep. 69/268; 76/311; 79/463; 81/275; 83/446; 85/653; 89/272; 95/519, 738; 98/654; 115/455,879; Hopkins, Pers. Inj. §§204, 304, 338; Hutch. Car. §612, p.487; Patterson’s Rwy. Acc. Law, §§ 5, 55, 277.