Luck v. Western & Atlantic Railroad , 73 Ga. App. 197 ( 1945 )

1. One who is walking along a path on a railroad right of way, parallel with and near the railroad tracks, is not taken out of the class of a trespasser merely because the public may have been accustomed to travel along said path and the railroad company has done nothing in an affirmative way with respect thereto and merely has taken no action to prevent such customary use of said path.

2. The allegations of the petition in this case do not constitute wilfulness and wantonness on the part of the defendant.

3. In the absence of an allegation to the contrary, it will be assumed that the plaintiff was a person of ordinary intelligence, and that he was laboring under no physical defect or disability which rendered him incapable of appreciating his position and of knowing the dangers incident thereto. And where such a person is in fact observed walking along or standing "dangerously near" the railroad track, it is the general rule that the railroad company is authorized to act on the presumption that he will leave the track or place of danger in time to save himself from his peril.

4. While it is alleged in the petition that the plaintiff exercised ordinary care and diligence for his own safety, and by reason thereof could not have avoided the defendant's negligence, it is an established rule of pleading that conclusions in conflict with the pleaded facts are to be disregarded when construing the petition on demurrer.

5. "The failure of the engineer to give the signals required by the statute when approaching a public crossing will not impose liability upon a railroad company to a person upon or near the railroad track who is fully aware of the approach of the train. In such a case failure to give the statutory warning of the approach of the train can not be regarded as the proximate cause of the injury sustained by a person having knowledge of the approach of the train."

6. The present suit is one for simple negligence, and the petition, when construed on demurrer, clearly shows that the plaintiff could have avoided the consequences of the defendant's alleged negligence by the exercise of ordinary care; and consequently he is not entitled to recover.

7. The court did not err in sustaining the defendant's general demurrer and in dismissing the action.

DECIDED NOVEMBER 21, 1945. J. J. Luck brought a suit for damages against the Western Atlantic Railroad for personal injuries alleged to have been sustained on April 17, 1944, on account of the negligence of the defendant.

The essential allegations of the petition are in substance as follows: (4) that the main-line railroad track of the defendant runs approximately through the center of the City of Cartersville, Georgia, in a northerly and southerly direction, parallel with and adjacent to the west side of Railroad Street, and the public crossing near the corner of Railroad Street and Bruce Street, where the plaintiff was injured, was approximately six feet wide, and the public had for a number of years frequently crossed the tracks there with the knowledge and permission of the defendant, and the defendant was charged with knowledge to anticipate the presence of and danger to the plaintiff where and when he was injured; (5) that on both sides of the railroad bed, extending northerly from the main passenger depot to and including Bruce Street, two paths parallel the main-line railroad track, being "dangerously close to the rails of said track;" (6) that said paths were used by the public in going from one block to another and in crossing the railroad tracks of the defendant at and near Bruce Street public crossing, and the frequent use of said paths by the public was tacitly acquiesced in and permitted by the defendant, and it was charged with using ordinary care and diligence to keep a proper lookout and to anticipate the presence of pedestrians and the plaintiff and to prevent injuring the plaintiff, which it failed to do, after his presence and apparent danger were apparent to them, or by the exercise of ordinary care and diligence could and should have been apparent, anticipated, and seen by the trainmen in charge of the train of the defendant; (7) "that, when plaintiff started across Railroad Street . . going west toward the road bed and tracks of the defendant extending along the west side of Railroad Street . . just before reaching the main railroad track of defendant, . . the view to petitioner's right was obscured by the obstructions and the curve in the railroad track, preventing petitioner from observing the oncoming train moving south toward Bruce Street public crossing; petitioner did not see or know that said train of defendant was going to cross said publicly used crossing," and could not by the exercise of ordinary care and diligence have known it, "but the trainmen . . carelessly and recklessly just a short distance before reaching said intersection and extension and public crossing and thoroughfare . . increased the speed of said oncoming train and negligently operated said train . . at a high, dangerous, and illegal rate of speed, in excess of the speed limit provided by said city . . without sounding any signal or warning, in violation of law, . . without keeping said train under reasonable and proper control . . while said engine and train of defendant was caused to violently rock and roll and sway from side to side, . . while the presence of and danger to plaintiff was known and seen, or . . by the exercise of ordinary care and diligence on the part of the trainmen in charge of defendant's train could and should have been seen and known;" which acts of omission and commission on the part of the defendant, its agents, and employees, were the direct and proximate cause of the plaintiff's injuries; (8) that when he reached the path on the east side of the road bed, he believed he could cross the tracks in safety at the speed the train was traveling, and if the train had not wrongfully increased its speed, he could have crossed said rails in safety, but after he started upon said tracks in his effort to cross, he "stopped before crossing said tracks and remained on said east path . . and plaintiff waited on said . . path . . as far away from and on the east side of said tracks as he could on said path and crossing;" and that the train under normal conditions could or would have passed the plaintiff in safety, but the trainmen, while the plaintiff's presence was seen, anticipated, and known to them, or which could and should have been anticipated, seen, and known by said trainmen in the exercise of ordinary care and diligence, wrongfully said carelessly caused said train to increase its speed above the speed limits then in force, wrongfully and recklessly caused said train to roll and rock violently in approaching and reaching the plaintiff, while he was in plain view of the trainmen, and caused "said rocking and rolling train to recklessly, unnecessarily, and dangerously put out, throw, and squirt hot water, hot steam and smoke onto and against plaintiff's body, limbs, head and face . . directly and proximately thereby causing plaintiff to be struck and hit by said train, jerked, knocked down, and run over by said train," resulting in certain described injuries to him; (9) that the defendant was further negligent in approaching said crossing where the plaintiff was injured without ringing any bell or giving other warning, and without checking speed, while his presence could and should have been anticipated and seen and while his danger could and should have been seen and known by the engineer and other trainmen, had they been in the exercise of reasonable and ordinary care; (10) that the employees in charge of said freight train were further guilty of negligence in the careless and reckless operation thereof without keeping it under reasonable and proper control to prevent injury to the plaintiff, and further failed to keep a necessary and reasonable lookout for the safety of the plaintiff; (11) that the defendant was further guilty of negligence in the operation of said train "while plaintiff was at the notoriously and publicly used crossing and thoroughfare and on the notoriously and publicly used thoroughfare and path," caused "said train and engine . . unnecessarily and unreasonably to rock and roll and sway from side to side and at the same time to dangerously, unnecessarily, and unreasonably to put out and throw and squirt hot water and hot and blinding steam onto and against plaintiff, and thereby wrongfully burn, blind, confuse and frighten plaintiff, . . and at the same time while plaintiff was so burned, blinded, frightened, and confused by said hot water and hot steam," said engineer and trainmen "wrongfully, recklessly, and carelessly caused said train to strike and knock down and to run over plaintiff by said train . . while and after defendant had tacitly and constructively invited and permitted plaintiff to be where he was injured;" (12) that the defendant was guilty of negligence in causing said train to be operated by careless, incompetent, and negligent trainmen, which the defendant knew or could and should have known by the proper care and diligence; (13) that the defendant was further guilty of negligence in that it "carelessly, recklessly, and wrongfully failed to keep said publicly and notoriously used thoroughfare and crossing and publicly and notoriously used path and thoroughfare in a reasonably and necessarily safe condition so as not to injure plaintiff in the manner and circumstances in which he was injured;" (14) that the plaintiff at the time of the injuries was in the exercise of ordinary care and diligence for his own safety and could not have avoided the defendant's negligence, nor the consequences thereof; (15) that the defendant, by its agents and employees, could by the exercise of ordinary care and diligence required by law have prevented and avoided the injuries alleged to have been sustained by the plaintiff.

The defendant demurred generally and specially to the plaintiff's petition, the grounds of the general demurrer being: (1) the allegations of the petition fail to show a cause of action; (2) because the allegations thereof are indefinite, ambiguous, uncertain, and contradictory, and do not inform the defendant with reasonable certainty as to the theory upon which the plaintiff relies for a recovery; that in paragraph 7 of the petition it was alleged that the view of the plaintiff was obscured by obstructions and the curve of the railroad track of the defendant, which prevented him from seeing the approach of the train; and in paragraph 8 of the petition it was alleged that the plaintiff believed he could cross said tracks in safety at the speed the train was traveling, but, after he had started to cross the tracks at and near Bruce Street, by reason of the increase in the speed of the train, the plaintiff stopped before crossing the tracks and remained on the east path which ran parallel with the railroad tracks; and further in paragraph 8 of the petition the plaintiff charged the defendant's agents and employees alternately with actual and implied notice of the plaintiff's presence, without putting the defendant on notice as to whether actual or implied knowledge was relied upon; and in paragraph 11 of the petition the defendant's agents and employees were charged alternately with actual and implied knowledge of the plaintiff's presence and danger, without putting the defendant on notice as to which theory was relied upon.

The court sustained the general demurrer, and dismissed the action; and the plaintiff excepted. 1. According to the allegations of the petition, the plaintiff, at the time he was injured, was standing on a path of the railroad right of way which ran parallel with the main-line tracks of the railroad, "dangerously close to the rails of said track of defendant." It was alleged that the path was six feet in width. It is apparent from the various allegations of the petition that the path running along the railroad track and crossing the tracks did not constitute a public crossing, but had been used by the public with the tacit or constructive knowledge of the defendant and its agents, there being no sign, notice, or other warning forbidding the use thereof. "A person who crosses the tracks of a railroad company, not at a public crossing, or at a private crossing established by law, or at a crossing which the railroad keeps up or helps to keep up, but at a place where people are accustomed to cross, and where the railroad has done nothing in an affirmative way, and has merely taken no action to prevent such customary crossing, is a trespasser." Lassiter v. Atlanta West Point R. Co., 61 Ga. App. 23 (5 S.E.2d 603), and numerous citations. "The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way of a railroad company, and that no measures have been taken to prevent it, does not of itself operate to constitute a person so using the track a licensee of the company; and, in the absence of the company's permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser."Hammontree v. Southern Ry. Co., 45 Ga. App. 728 (165 S.E. 913); Southern Ry. Co. v. Barfield, 112 Ga. 181 (37 S.E. 386). In the Barfield case, supra, where the plaintiff was injured on the right of way of a railroad in broad daylight, while walking along the track and seeing an approaching locomotive, stepped from that track to the space between it and another track, without looking back to see if anything was coming, and on the approach of a moving train on the second track from the rear, he threw out his hand, striking one of the moving cars, and was thereby thrown under the wheels and injured, the court ruled that he was not entitled to recover whether he was a licensee or trespasser. In the present case, when the plaintiff started across Railroad Street, just before reaching the main-line railroad tracks, it was alleged that the view to his right was obscured by obstructions and curve in the railroad track, preventing him from observing the oncoming train; that he did not see or know that the train was going to cross the crossing, but that the trainmen, when just a short distance from the crossing and thoroughfare, carelessly increased the speed of the train to a high and dangerous and illegal rate; that, when the plaintiff reached the path on the east side of the road bed on the west side of Railroad Street, he believed that he could cross the tracks in safety, but, after he started upon the tracks, he stopped before crossing and remained on the east path "as far from and on the east side of said tracks as he could on said path and crossing," and, by reason of the speed and the violent rocking and rolling of the train, and the exhaust of hot water, steam, and smoke upon him, he was injured as alleged. According to the allegations of the petition, 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. It was ruled in Clardy v.Southern Ry. Co., 112 Ga. 37 (37 S.E. 99): "A railway company is not liable to a pedestrian who, even as a licensee, uses its right of way as a foot-path, for injuries occasioned by a blow from a stone which formed a portion of the ballast of the company's track and which was casually dislodged from its place therein and hurled against him by a passing train." And it was said in the opinion in that case: "One who uses a railroad right of way as a pathway is surely chargeable with knowledge of the uses which the company ordinarily makes of property of this kind, and necessarily takes the risk of casualties occasioned by such use. If the defendant company ought to have foreseen the particular casualty of which the plaintiff complains, he, too, ought to have foreseen it and selected some other and safer place to walk."

2. There is no allegation of wilful and wanton negligence on the part of the defendant in this case, but the allegations in that respect are in the alternative. "``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 (3), 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 Ga.Ry. Co. v. Stamps, 48 Ga. App. 309 (172 S.E. 806). In the absence of an allegation to the contrary, it will be assumed that the plaintiff was a person of ordinary intelligence and that he was laboring under no physical defect or disability which rendered him incapable of appreciating his position and of knowing the dangers incident thereto. Thomas v. GeorgiaGranite Co., 140 Ga. 459, 460 (79 S.E. 130). "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 Ry. Co., supra; Young v. South Georgia Ry. Co.,34 Ga. App. 537 (130 S.E. 542); Central of Ga. Ry. Co. v.Stamps, supra; Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S.E. 36, 59 L.R.A. 592); Dodson v. Southern Ry. Co.,55 Ga. App. 413 (190 S.E. 392); Southern Ry. Co. v. Lomax,67 Ga. App. 406 (20 S.E.2d 437).

3. "Even where a person on the track is in fact discovered, it is the general rule that 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, 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 Ry.Co., supra; Young v. South Georgia Ry. Co., supra; Dodson v. Southern Ry. Co., supra; Southern Ry. Co. v. Lomax, supra.

4. It is alleged in paragraph 14 of the petition that the plaintiff exercised ordinary care and diligence for his own safety, and that by reason thereof he could not have avoided the defendant's negligence nor the consequences. "It is an established rule of pleading that conclusions in conflict with the pleaded facts are to be disregarded (Flynt v. Southern Ry.Co., 7 Ga. App. 313, 316, 66 S.E. 957), and general allegations that a person could not have avoided the consequences of another's negligence by the exercise of ordinary care after it was or should have been discovered must yield, on demurrer, to the particular facts shown where inferences from the facts are necessarily to be drawn contradictory to the conclusions. (Wood v. Pynetree Paper Co., 29 Ga. App. 81,114 S.E. 83)." Moore v. Seaboard Air Line Ry. Co.,30 Ga. App. 466 (118 S.E. 471).

5. Paragraph 9 of the petition alleged negligence on the part of the defendant by its failure to ring any bell, or sound any gong or whistle or other warning of the approach of the train. Paragraph 8 of the petition alleged in substance that the plaintiff saw the approaching train "and believed that he could cross said tracks in safety at the speed said train was traveling. . . The failure of the engineer to give the signals required by the statute when approaching a public crossing will not impose liability upon a railroad company to a person upon or near the railroad track who is fully aware of the approach of the train. In such a case failure to give the statutory warning of the approach of the train can not be regarded as the proximate cause of the injury sustained by a person having knowledge of the approach of the train." Central Railroad v. Brinson, 70 Ga. 207;Central of Ga. Ry. Co. v. McKey, 13 Ga. App. 477 (3) (79 S.E. 378). See also Chandler v. Pollard, 64 Ga. App. 122,127 (12 S.E.2d 190).

6. The present suit is one for simple negligence, and the petition, when construed on demurrer, clearly shows that the plaintiff could have avoided the consequences of the defendant's alleged negligence by the exercise of ordinary care; and consequently he is not entitled to recover. And this is true in this case, regardless of whether the plaintiff be classed as a trespasser or licensee of the defendant company. Dodson v.Southern Ry. Co., supra; Southern Ry. Co. v. Lomax, supra;Pollard v. Reid, 56 Ga. App. 594 (193 S.E. 370);Thornton v. Southern Ry. Co., 71 Ga. App. 530 (31 S.E.2d 189).

7. The court did not err in sustaining the defendant's general demurrer and dismissing the action.

Judgment affirmed. Felton and Parker, JJ., concur.