Lowe v. Payne , 31 Ga. App. 388 ( 1923 )

Jenkins, P. J.

(After stating the foregoing facts.) It indisputably appears from the record in this case that the deceased, at the time he was struck and killed by the train, was sitting or lying in an exposed position on or near the railroad track, and that this conduct on his part was unexcused and unexplained, save that it appears that he had been drinking intoxicating liquors. The Supreme Court, in answer to questions propounded to it in this case, has ruled that under such circumstances a deceased person would be lacking in ordinary care to prevent the consequences to himself of the defendant’s negligence; that under such circumstances the defendant could not be held liable for the homicide, except on the theory that it was guilty of wilful and wanton negligence; and that, in the absence of any special facts and circumstances such as might vary the general rule, the failure of the defendant to anticipate and discover the presence of the deceased on the track, so that the defendant could thereafter use all ordinary and reasonable means to protect him, could not amount to wilful and wanton negligence, even though the homicide may have occurred at a time when and at a place where the defendant was under the duty of anticipating the presence of trespassers on the track. Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). Since a failure on the part of a railroad company to anticipate and discover the presence of trespassers on its track at a time and place when it was under a duty to anticipate them cannot of itself amount to wilful and wanton negligence, it follows that the action of the trial judge in directing a verdict in favor of the defendant must be affirmed; for the reason that it appears, without dispute, that the operatives of the train were unaware of the presence of the deceased on or near the track until after it was too late to avoid the injury, and since the degree of blame chargeable from its neglect of duty in failing to discover his presence is not augmented by reason of any proved fact or circumstance, beyond the one disputed contention that it was the duty of the company to anticipate the presence of trespassers at the time and place of the homicide, and since no other fact or circumstance appears which could possibly indicate wilful or wanton negligence.

The homicide did not occur at a public crossing, or even at a private crossing, but the record shows that the deceased had undertaken to walk down the defendant’s track from one small station to another, about three miles distant, and that the homicide occurred on the private right of way. The allegation, supported by evidence, that pedestrians were accustomed thus to make use of the defendant’s right of way between the two named stations would not render the defendant company guilty of wilful and wanton negligence in failing to continuously blow the whistle or ring the bell while running trains from one of these stations to the other. The petition alleged that the train was traveling at an excessive speed of forty miles per hour. This, under the facts of the ease, could not constitute wilful and wanton negligence; and besides, the only evidence as to speed was the testimony of the engineer, who swore that the train was on schedule time and running at a speed neither above nor below the usual schedule speed. If the presence of the deceased on the track in an apparently incapacitated condition had become known to the operators of the defendant’s train, so that by the exercise of ordinary and reasonable diligence they could have thereafter prevented the injury, the rule would be different, since in such a case wilful and wanton negligence might be chargeable against the company. Charleston & Western Carolina Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064).

Judgment affirmed.

Stephens and Bell, JJ., concur.