Pollard v. Holland , 64 Ga. App. 487 ( 1941 )

The evidence demanded a finding that the plaintiff was a trespasser, and not an implied invitee, in her attempt to cross railroad-tracks in a switch-yard. An instruction by the court to the jury, as to the duty of railroad servants toward an invitee, presented an issue not made by the evidence, and was erroneous and misleading. STEPHENS, J., dissents.

DECIDED MARCH 13, 1941. 1. 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." Waldrep v. Georgia Railroadc. Co., 7 Ga. App. 342, 344 (66 S.E. 1030). SeeGeorgia Railroad Banking Co. v. Fuller, 6 Ga. App. 454 (65 S.E. 313); Williams v. Southern Railway Co.,11 Ga. App. 305, 313 (2) (75 S.E. 572); Wright v.Atlantic Coast Line R. Co., 18 Ga. App. 439, 441 (89 S.E. 595); Groves v. Southern Railway Co.,61 Ga. App. 651 (7 S.E.2d 208); Grady v. Ga. R. Co.,112 Ga. 668 (37 S.E. 861).

2. While, as stated by this court in Pollard v.Holland, 59 Ga. App. 427, 429 (1 S.E.2d 73), in ruling on the demurrer to the petition in the present case, "We can not hold that one track and switch in immediate proximity to a depot used by the general public constitutes a switch-yard as defined by" the decisions cited in the opinion, and that under the allegations that "the place where plaintiff attempted to cross, because the regular walkway was blocked by defendant's freight cars, ``is commonly used by the general public, because of its immediate proximity to the depot,'" it was a jury question as to whether or not the plaintiff, in attempting to cross the track for the purpose of depositing mail in one of the cars of the defendant's passenger-train temporarily at rest at the depot, was using a switch-yard of the defendant, still, under the evidence introduced on the trial of the case, a finding was demanded as a matter of law that the plaintiff at the time of her injury was attempting to cross a switch-yard of the defendant, in which there was not merely one track and one switch but six tracks and a switch, all of which were constantly used by the defendant in switching movements and in placing cars for unloading purposes. Accordingly, the plaintiff was not an implied invitee, but was only a trespasser to whom the only duty owed by the defendant railroad company was not to wilfully and wantonly injure her after her presence became known; and the charge of the court, on which error is assigned in grounds 4 and 5 of the motion for new trial, as to the duty of the railroad company towards an invitee, was error, in that it presented an issue not made by the evidence and tended to confuse and mislead the jury to believe that a verdict in favor of the plaintiff would be authorized where the defendant failed to exercise ordinary care towards the plaintiff, even though they did not find that the act of the defendant's servants, in throwing a switch as the plaintiff placed her foot upon a rail operated by it, as testified to by the plaintiff, was with a wilful and wanton intention to injure her.

Judgment reversed. Felton, J., concurs.