Central of Georgia Railway Co. v. Roberts , 94 Ga. App. 600 ( 1956 )

Carlisle, J.

Under the rules for properly pleading the agency relationship between a corporation and its employees, which have been so cogently stated by MacIntyre, P. J., in Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324 (58 S. E. 2d 559), the petition was, upon this point, sufficient as against demurrer, either general or special. There are in the petition simple direct statements of fact in the nature of express general averments that the negligent acts of the employees of the defendant here in question were committed in the prosecution of the defendant’s business and within the scope of their authority. These allegations must, as against demurrer, be taken to be true. Code § 81-304. There is nothing in Wright v. Ga. R. & Bkg. Co., 34 Ga. 330 (3) contrary to the present ruling. The statements made by the brakeman in that case were shown upon the trial of the case not to come within the scope of his authority.

It is axiomatic that questions as to diligence and negligence including contributory negligence and proximate cause are peculiarly for the determination of a jury and the court will not solve them on demurrer, except in plain and indisputable cases. International Cotton Mills v. Carroll, 22 Ga. App. 26 (95 S. E. 472); Hodges v. Atlanta Gas Light Co., 75 Ga. App. 105 (42 S. E. 2d 244).

It is equally axiomatic that a pleading is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties (McEntire v. Pangle, 197 Ga. 414, 29 S. E. 2d 503); but where the allegations of a petition, viewed as a whole, are not inconsistent with the pleader’s right of recovery and contrary inferences cannot fairly be drawn, the allegations of the petition must be taken as true on demurrer.

Under a proper construction of the petition, the plaintiff does not allege that he was endeavoring to board the train or to climb upon it while it was in motion. He alleges that he ran along beside the train for a distance of between 10 and 15 feet within the loading area waving and hollering and knocking upon the coach door in an effort to attract the attention of those in charge of the train so as to gain admittance. While in paragraph 9 of the petition he does use the expressions “at the time he attempted to board the train,” and “the train which he endeavored to board,” these expressions are descriptive of the time in question and the train in question and not inconsistent with his allegations that he was endeavoring to attract the attention of someone inside the train to admit him. We cannot agree, therefore, with the defendant that the petition shows the plaintiff to be attempting to board the moving train, nor do we agree that his action in running along beside the moving train was so obviously dangerous and perilous, as, under the doctrine of assumption of risk, to prevent his recovery.

There is no question of assumption of risk involved in this case. As we all know, the doctrine of assumption of risk really grew out of the master-servant relationship; but, be that as it may, assumption of risk presupposes a knowledge, at some time before the actual injury sustained, of the danger assumed. Smith v. American Oil Co., 77 Ga. App. 463 (49 S. E. 2d 90); S. C. Jones Co. v. Yawn, 54 Ga. App. 826 (188 S. E. 603). To' run along beside a train within the loading area of a railway terminal in order to attract the attention of those in charge of the train is not as a matter of law negligence or so dangerous that it can be said that the plaintiff in doing so assumed the risk of being injured thereby. The danger consisted of the plaintiff’s stumbling over the concealed encasement box. In so far as it appears from the petition, the object which caused the plaintiff to fall was the encasement box located within the loading area and concealed by grass. He had no knowledge of its presence, but since the box was used by the defendant in its operations, the defendant was chargeable with notice of its presence.

The most common test of the negligence of a defendant is whether the consequences of its acts are reasonably to be foreseen as injurious to others coming within the range of such acts, and what is reasonably to> be foreseen is generally a question for the jury-

The defendant in this case had knowledge of the plaintiff’s ignorance of the operation of railway trains. Its ticket agent told the plaintiff where he should go in order to board the train, and this instruction was incorrect. It placed the plaintiff two tracks away from the track on which the train he was to board came in and departed. It placed him on the wrong side for boarding the train. The plaintiff was assured that he would be assisted in boarding the train. He was not. The plaintiff was given no notice of the impending departure of the train. Whether the defendant was negligent, with knowledge of all the facts and circumstances of the plaintiff’s particular situation, in sending the plaintiff to the wrong place for boarding the train for which he had purchased a ticket, and whether the plaintiff was negligent in running after the train in order to. attract the attention of those in charge of the train, are questions, of fact peculiarly for the determination of a jury. Furthermore, whether or not the defendant, through its agents created an emergency by their actions, and the quantum of care required of the plaintiff in such an emergency, if emergency there was, are questions of facts for the jury. Under all the attendant circumstances, it was a question for the jury to determine whether or not the defendant was negligent in maintaining the encasement box concealed by the grass within the loading area, and it was unnecessary for the plaintiff to specifically denominate the presence of the box under such circumstances as negligence. We think that even if the plaintiff had tripped over his own feet instead of the encasement box, the jury might, depending upon the evidence adduced upon the trial, find that the defendant was negligent in creating an emergency which was the proximate cause of the plaintiff’s injury.

Depending upon the evidence adduced upon the trial, the jury may very well be authorized to find that had the plaintiff not been sent to the wrong side of the train and had he been warned of its departure, he would not have, in his emergent excitement, run after the train and fallen over the concealed encasement box, which caused his hand to fall upon the track and his fingers to be severed therefrom. See in this connection Central R. & Bkg. Co. v. Perry, 58 Ga. 461. The defendant with knowledge of the facts and circumstances of the plaintiff’s situation, set into motion a chain of events for which it is responsible, as that chain, insofar as appears from the petition, was unbroken by any intervening negligence. The trial court did not err in overruling the general demurrer to the petition.

We find no merit in any of the numerous special demurrers, most of which are imperfect as critics or are speaking demurrers.

Pursuant to the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232) requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.

Judgment affirmed.

Felton, C. J., Townsend, Quillian, and Nichols, JJ., concur. Gardner, P. J., dissents.