Southern Railway Co. v. Waldrup , 76 Ga. App. 356 ( 1947 )

1. Where a husband brings a suit for the wrongful death of his wife before the statute of limitations has run, the children of the deceased wife may be added by amendment after the expiration of the period of the statute of limitations, because the amendment relates back to the bringing of the suit. See Wallace v. Brannen, 56 Ga. App. 856 (193 S.E. 901).

2. (a) Where a number of persons habitually, with the knowledge and without the disapproval of the railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of this custom, are bound, on a given occasion, to anticipate that persons may be upon the tracks at this point; they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence. See Western Atlantic R. Co. v. Michael, 175 Ga. 1 (6) (165 S.E. 37).

(b) Where a petition for the wrongful death of a decedent alleges that such decedent was killed by the operation of the cars of a railroad company, that said wrongful death occurred while the deceased in crossing the tracks was using a much traveled pathway, the use of said pathway by the public over a long period of time being known to the railroad company and to its employees in charge of the cars alleged to have caused the wrongful death, that such employees discovered the deceased upon said railway and the tracks of the company and after making such discovery are guilty of specific acts of negligence — which petition shows that said employees failed to take such measure as ordinary prudence would require to prevent injury to such deceased person, and does not allege any facts which within themselves constitute the lack of ordinary care on the part of such deceased person for his own safety — such petition alleges a cause of action sufficient to withstand an oral motion to dismiss in the nature of a general demurrer, where no special demurrers have been filed.

(c) In such a petition it is not necessary for the plaintiff to negative the want of proper care on the part of the deceased, because such want of care is a matter of defense. See Bullard v. Southern Ry. Co., 116 Ga. 644, 649 (43 S.E. 39).

3. (a) One using a path across a railroad track is bound to use ordinary care for his own safety, and ordinary care in such case is that care which an ordinarily prudent person would use under similar circumstances. The absence of such care defeats recovery where the exercise of such care would have avoided the injury.

(b) A person 72 years of age, in good health and possessed of normal faculties, except for a slight hearing defect which was not sufficient to prevent hearing ordinary conversations, is bound as a matter of law, before stepping from a place of safety on the side of a railroad track to a position between the rails, to look for the approach of trains and cars; and where a person steps upon the railroad tracks in front of oncoming cars without looking, and the employees of the company on said cars immediately shout sufficiently loud at such person for people located several hundred feet away to hear them shouting, and apply the brakes and lock the wheels, such operators are in the use of ordinary care for the protection of such pedestrian, and such pedestrian is lacking in due care for her own safety as a matter of law to such an extent as to bar recovery, even though such person is using an often-used pathway across said railroad tracks in a populous section of a city, and although the trainmen in charge of the approaching cars knew of the use of such path by pedestrians.

DECIDED DECEMBER 5, 1947. REHEARING DENIED DECEMBER 18, 1947. On September 10, 1945, W. D. Waldrup filed his petition in the Superior Court of Gwinnett County, in which he alleged that he was the surviving husband of Mary Etta Waldrup, age 72 years, who died as a result of injuries sustained by her while she was crossing the railroad tracks of the defendant in the city limits of Buford, Georgia, by being run into by a gasoline motor car of the defendant, which was then engaged in pushing two flat cars on the north-bound track of said railway.

The petition also alleged that at the time of her death she was using a path near the city limits of the City of Buford, which was "commonly used by the public with the knowledge and acquiescence of the defendant, its servants, agents and employees, including the servants who were then and there operating said motor car, and that the path was located in a densely populated section of the incorporated town, or city of Buford, Ga.," said path crossing the railroad tracks to a series of steps which had been constructed and maintained for several years for the use of pedestrians using said path in ascending and descending the fill on the north side of said railroad tracks, by and with the full knowledge and consent of the railway company, this constituting an invitation by the railway company to pedestrians to use the pathway in crossing its line of railway tracks at said point.

The petition also alleged that the deceased was crossing on the pathway so that her back was to the approaching motor and flat cars, when suddenly, and without warning, said motor and flat cars came upon her at a rapid, dangerous and reckless speed of 30 miles per hour, and without giving any signal of its approach and without being equipped with suitable brakes, and without checking the speed.

Another paragraph of the petition alleged that, in approaching the deceased while she was on said pathway, the servants and employees of the defendant knew that the back of the deceased was to the approaching motor and flat cars; and that the proximate cause of the death was the negligence of the defendant in failing to anticipate the presence of the deceased in said path at said time and place and to have so regulated the speed of said motor and flat cars as to have been able to stop the same in time to avoid the injury, but it continued at a speed of 30 miles per hour without sounding any alarm, giving any warning, and without checking and reducing the speed of the motor and flat cars so as to avoid doing injury to the deceased.

Briefly stated, the uncontradicted evidence showed that the deceased, a normal woman of 72 years of age, whose hearing, though slightly impaired, was sufficient to hear ordinary conversations, walked up a pathway to the top of a fill, along the path by the side of the tracks, and without looking up and down the tracks for approaching trains or cars stepped onto the tracks. The men operating the car immediately shouted at her so loud that people several hundred feet away from the railroad heard them and looked in the direction in time to see the cars strike her body.

The operator of the cars immediately applied his brakes and locked the wheels, but the cars struck her body and knocked her to the ground, inflicting such injury that she died therefrom within about 30 minutes.

The cars traveled a distance of from some 30 feet to 200 feet after striking her, according to the estimates of various witnesses. The speed of the cars at the time she stepped in front of them was estimated at from 10 miles per hour to 30 miles per hour.

At the time of her death, the deceased was on her way to her home, which was located near the railroad on the opposite side of the tracks, where she had lived for several years. The evidence showed that trains or cars passed over the tracks on an average of every 13 minutes.

The defendant made an oral motion to dismiss the petition, because it appeared from the allegations that the decedent was a trespasser, and, under the facts alleged, the petition set forth no cause of action against the defendant; and since the action was brought by the surviving husband without joining the surviving children, the petition should be dismissed.

An amendment joining said children was then filed.

Upon the presentation of the amendment, the defendant renewed its motion to dismiss and urged as a further ground that more than two years had elapsed since the death of Mrs. Waldrup before the attempt to add any additional parties, and any right of action existing in favor of the children was barred by the statute of limitations.

The judge overruled these motions and overruled a motion to direct a verdict. The jury returned a verdict for the plaintiffs in the sum of $1500.

Exceptions pendente lite and a motion for a new trial containing the general grounds were then filed, overruled, and a bill of exceptions was brought to this court contending that the rulings of the court on such motions were reversible error. 1. This court held in Wallace v. Brannen, 56 Ga. App. 856 (supra), that where the surviving husband brings an action for the wrongful death of his wife, her surviving children may be joined as parties plaintiff by amendment, even though more than two years have elapsed since the children's cause of action accrued, the husband's petition having been filed before the expiration of two years. This assignment of error is without merit.

2. The petition was sufficient to withstand an oral motion to dismiss in the nature of a general demurrer. It alleged that a path crossed the railroad in question in a populous section of the City of Buford; that this path had been constantly used by many people for a number of years; that this was known to the railroad company; and that its agents in charge of the cars inflicting the injury knew of this use. It also alleged that the employees in charge of the cars saw the deceased and knew of her presence upon the tracks while crossing on this pathway with her back to the approaching cars, and that such employees at the reckless speed of 30 miles per hour suddenly ran upon and over the deceased without giving any warning of their approach and without checking the speed by the use of brakes or other device.

The Supreme Court held in Western Atlantic R. Co. v.Michael, 175 Ga. 1 (6) (165 S.E. 37), that, where a number of persons habitually, with the knowledge and without the disapproval of the railroad company, used a private passageway for the purpose of crossing the tracks, at a given point, the employees of the company in charge of one of its trains, who are aware of this custom, are bound, on a given occasion, to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons that would meet the requirements of ordinary care and diligence.

If these allegations were proved as pleaded, without more, the questions of whether these facts constituted the lack of ordinary care for the safety of the deceased and constituted the proximate cause were issues of fact to be decided by the jury. SeeBullard v. Southern Ry. Co., 116 Ga. 644, 648 (43 S.E. 39). Under such circumstances, it is not obligatory upon the plaintiff to allege that the decedent used ordinary care to avoid the injury, because this is a matter of defense. See AtlanticCoast Line R. Co. v. Wildman, 29 Ga. App. 745 (4) (116 S.E. 858); Western Atlantic R. v. Reed, 35 Ga. App. 538, 541 (134 S.E. 134).

This case is distinguishable from Luck v. Western Atlantic R., 73 Ga. App. 197 (36 S.E.2d 59), because, as pointed out by this court, in the latter case the petition alleged that "the plaintiff saw the approaching train when he started on the track and in time to remove himself from his perilous position to a place of safety, but, instead of doing so, chose to remain on the path ``dangerously close to the track,' and was injured by a train he saw approaching him from the front." See p. 203 of the decision. It was held in that case that it affirmatively appeared from the petition that the plaintiff could have avoided the injury by the use of ordinary care. The petition in the instant case did not, as a matter of law, show that the deceased could have avoided the negligence of the defendant by the use of ordinary care.

While it has been held in many cases that as a general rule a railroad 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 (see Luck v. Western Atlantic R., supra, p. 204), yet, in the instant case, it is alleged that the employees of the company had knowledge of the path and its almost constant use by the public, and that for this reason the company was lacking in due care in approaching the pathway at the excessive and dangerous speed of 30 miles per hour, and failed to sound a warning or apply the brakes, and that this lack of ordinary care was the proximate cause of the injury and death. Whether such acts and failure to act constituted actionable negligence and were the proximate cause or contributed thereto to a greater extent than the negligence which may be attributed to the defendant from the allegations, raised issues of fact.

It is within the province of the jury to determine whether "the dictates of ordinary prudence might not require" a slower speed than 30 miles per hour, and such speed that the cars could have been stopped by the application of brakes before striking the deceased, and might not require a sounding of a whistle, horn, or other signaling device emitting a loud warning. The defendant may owe many duties to a person on its tracks, the presence of whom it is bound to anticipate, whether as trespasser or licensee, which are not declared by statute. See Western Atlantic R. v. Reed. supra. These are questions to be determined by the jury. See Atkinson v. Fountain, 10 Ga. App. 307 (3) (73 S.E. 534).

Redding v. Calloway, 74 Ga. App. 855 (41 S.E.2d 804), is not applicable to the case at bar because in the Redding case there were no allegations that the employees in charge of the train actually saw the deceased, or that if they saw him it was in time, by the exercise of ordinary care, to prevent injuring or killing him, "or that he was in a dangerous and perilous position which was known to such employees;" whereas in the instant case the allegations are that the deceased was upon the tracks with her back to the approaching cars, and these facts were known to the employees who saw her and knew or should have known of her perilous position. Furthermore, the petition in that case did not allege a much-used pathway crossing the tracks in a populous community, known by the employees to be generally used by the public as a crossing place, as in the instant case. The path ran parallel with the tracks and not across them, as in this case.

The petition before us alleges that the employees of the defendants saw and knew that her back was to the approaching cars, and this allegation in the first part of paragraph 8 of the petition takes this case out of the rule that "an allegation 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." This is true, even though it is later said in the same paragraph that such employees saw, or should have seen, the deceased for a distance of at least 300 feet. Construing this paragraph as a whole, it alleges that the operator saw her in time, in the exercise of ordinary care, to avoid injury.

While the paragraph does not allege at what distance the employees actually saw the deceased, there was no special demurrer; and since it is alleged that they actually saw her, but that such employees sounded no alarm of any kind and failed to reduce or slacken speed, it does indicate that the deceased was seen a sufficient distance to have done these things, as against an oral motion to dismiss.

Otherwise, it would be impossible to apply the principle announced in Bullard v. Southern Ry. Co., supra (1), to the effect that the employees of the company are bound to anticipate that persons may be upon the tracks using a much traveled pathway crossing, and are under duty to exercise ordinary care and diligence to avoid injuring them. See also Western AtlanticR. v. Michael, supra.

In fact, actual notice is not necessary in order to require such care and diligence where the employees operating the cars know that the pathway crossing is located in a populous section of a city and is habitually used by the public. That such pathway crossing is in a populous section more especially requires this anticipation and use of ordinary care. Bullard v. Southern Ry.Co., supra, (2).

The distinction between a pathway crossing the tracks in a populous section known by the employees of the railroad to be habitually used by the public as a crossing, on the one hand, and the case of a path running parallel with the tracks, on the other, should be kept in mind, although there is some conflict in the cases as to the duty owed by the railroads to persons using such pathways, and this distinction does not harmonize all of them.

The court did not err in overruling the oral motion to dismiss the petition.

3. That brings us to the question of whether the evidence was sufficient to support the verdict. The uncontradicted evidence in the case shows that the deceased was a woman of 72 years of age, and that she was apparently a normal person for this age. She was walking down the side of a railroad track in a place of safety with her back to the oncoming motor car. She had brush brooms under her arm, and after proceeding for some distance, suddenly made an abrupt turn and stepped upon the railroad track in front of the oncoming motor car.

The uncontradicted evidence is that, had she continued along the side where she was before stepping upon the track, the cars would have passed by her without doing her any injury. Although she was 72 years of age, and it might be assumed that the agents of the company on the oncoming car could see and observe that she was a person of such age, yet the employees of the company were perfectly justified in assuming that, since she was in a place of safety, she would remain there until the danger had passed, and were not bound to take any affirmative action for her protection until she assumed a position of danger from which it was, or should have been in the exercise of ordinary care, apparent to such employees that she would not extricate herself in time to avoid injury. While the operators of trains and cars are bound to anticipate the presence of persons crossing the tracks on pathways of the kind here involved, yet, where they see a person in a position of safety on such pathway, and it is apparent to them that such person is proceeding in a direction of continued safety, such operators have the right to presume that such person will continue in the place of safety, and not abruptly turn and step in front of the oncoming train or car. Gordon v. AtlanticCoast Line R., 21 Ga. App. 812 (95 S.E. 311).

Although there is some conflict in the evidence as to whether the deceased had stepped onto the tracks in front of the approaching car in time for her to get off when the employees shouted at her, the evidence is uncontradicted that they shouted at her as a warning of her danger immediately as she turned from a place of safety on the path alongside the tracks and stepped onto the track itself.

The evidence is also uncontradicted that, at the time the deceased turned from a place of safety on the path alongside the track and stepped on the track, she did so without looking up or down the tracks for approaching trains or cars.

Whether the car was far enough away, at the time she stepped onto the track and the employees in charge of the operation of the car shouted as a warning to her, for her to get off the track, or whether the car was so close to her at the time she stepped onto the track, would not alter the fact that she was so lacking in the exercise of ordinary care for her own safety as to bar a recovery for her homicide.

If the shouting occurred in time for her to get off the track, she was lacking in the exercise of ordinary care for her own safety as a matter of law in not looking around and not stepping off the tracks and back to a place of safety. On the other hand, if she, without looking, stepped from a place of safety on the path alongside the track onto the track immediately in front of the approaching car when the same was so close upon her that the shouting of the employees in charge of the car was not in time to constitute a warning to her, this conduct also would constitute lack of ordinary care on her part for her own safety, and would likewise bar a recovery for her homicide.

The evidence being insufficient to sustain a verdict for the plaintiff, it is unnecessary to consider the other grounds of the motion for a new trial.

Accordingly, the court erred in refusing a new trial.

Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur.