Southern Railway Co. v. Lomax , 67 Ga. App. 406 ( 1942 )

1. "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).

2. "The mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and a time when it was their duty to anticipate the presence of trespassers, and thereafter to take such needful and proper measures for his protection as ordinary care might require, might amount to a lack of ordinary care on the part of the railway company, but would not, in and of itself, amount to wilful and wanton misconduct." Hammontree v. Southern Railway Co., supra; Lowe v. Payne, 156 Ga. 312 (118 S.E. 924).

3. "Even where a person on the track is in fact discovered, it is the general rule that a railway company is authorized to act on the presumption that a person apparently of full age and capacity, standing or walking along or near its track, will leave it in time to save himself, unless it should also appear that such trespasser is in an apparently incapacitated or helpless condition, so that he could not reasonably be expected to extricate himself from his peril." Hammontree v. Southern Railway Co., supra; Young v. South Georgia Ry. Co., supra.

4. "``An allegation in a petition that a person knows or by the exercise of ordinary care ought to know a given fact is not an allegation of actual notice of such fact.' Central of Ga. Ry. Co. v. Tapley [145 Ga. 792 (2) (89 S.E. 841)]. Allegations that the servants of a railroad company operating its train knew or ought to have known of the presence of a person on its track in front of the train, their actual knowledge of which is necessary to constitute wilfulness and wantonness by the defendant, charge only implied notice, and are insufficient to show wilfulness and wantonness. Western Atlantic R. Co. v. Michael, 175 Ga. 1 (5), 10 (165 S.E. 37)." Central of Georgia Ry. Co. v. Stamps, 48 Ga. App. 309 (4) (172 S.E. 806).

5. "The duty of the railway company to discover the presence of one upon its right of way, when it may reasonably be anticipated that such person may be present thereon, does not relieve him of the duty to exercise ordinary care for his own safety." Dodson v. Southern Railway Co., 55 Ga. App. 413 (6), 419 (190 S.E. 392), and cit.

6. In the absence of wilful or wanton misconduct on the part of the defendant the plaintiff can not recover for alleged injuries caused by the defendant if the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. Dodson v. Southern Railway Co., supra, and cit.

7. Applying the above-stated principles of law to the allegations of the petition, from which it appears that the plaintiff, an old man of 73 years of age but in full possession of his faculties of sight and observation, was walking by the side of the defendant railway's track, not at a public crossing or within fifty feet thereof, with his back towards an approaching engine, and that by reason of the noise of another engine approaching from the opposite direction on a different track, the third parallel track from the one alongside of which he was walking, he was not aware of the engine behind him, the crew of which gave no warning of its approach and were violating a municipal ordinance as to the rate of speed of the engine, which struck and injured the plaintiff in described particulars, it being alleged that the employees operating the engine which struck the plaintiff saw or, by the exercise of ordinary care, should have seen the plaintiff, and that it was their duty to anticipate his presence at the time and place, but it was not alleged that any act of the defendant, through its servants, was wilful or wanton, or that the plaintiff was incapacitated or helpless to extricate himself from his peril, the failure of the plaintiff to use his faculties of sight and observation by which he could have determined, by merely turning his head, that the engine was approaching behind him, was such negligence upon his part as to bar recovery. The petition did not set forth a cause of action and the trial court erred in overruling the general demurrer. See especially Lowe v. Payne, 156 Ga. 312 (118 S.E. 924); Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (127 S.E. 274); A. W. P. R. Co. v. Pressley, 44 Ga. App. 142 (160 S.E. 663); Leverett v. L. N. R. Co., 38 Ga. App. 155 (142 S.E. 905); Cantrell v. Pollard, 57 Ga. App. 413 (195 S.E. 766).

Judgment reversed. Felton, J., concurs. Stephens, P. J.,dissents.

DECIDED MAY 6, 1942. REHEARING DENIED MAY 30, 1942.