Etheredge v. Central of Georgia Railway Co. , 122 Ga. 853 ( 1905 )

Cobb, J.

If the boy was a bare trespasser and upon the railway company’s premises without any express or implied permission or invitation, the defendants owed him no more duty than they would have owed under the same circumstances to an adult. N., C. & St. L. Ry. Co. v. Priest, 117 Ga. 767; O'Connor v. Brucker, 117 Ga. 451 (4). But if the boy was upon the premises of the railway company by its consent, either expressly given, or to be inferred from the circumstances proved, the defendants owed him a duty to protect him against hidden dangers which he incurred by reason of his presence; and possibly owed him a greater duty than it would have owed to a person who could have protected himself from dangers incident to his presence on the company’s premises. In other words, if a boy five or six years of age was permitted to use the • path, the company might be required to anticipate that, by reason of his youth and inexperience, he would be more likely to fall into the ditch from the path than would an adult. Ashworth v. Ry. Co., 116 Ga. 635. “When the owner or occupier of land, by invitation, express or implied, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by the unsafe condition of the land or its approaches, and, under such an express or implied invitation, he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.” Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145. If, therefore, the boy was using the path with the implied consent of the railway company, and if he fell into the ditch from the path, he would have a right to recover. Burton v. Railroad Co., 98 Ga. 783. It was incumbent upon the plaintiff to show, not only that the path was of such a character as to amount to an invitation or permission on the part of the railway company to use it as a passageway over the laud, but also to show that the injury resulted from the use of the path and while the plaintiff was in the act of availing himself of this permission. If he went out of the path, and the use of the path was not the proximate cause of the injury, there can be no recovery. Savannah Ry. Co. v. Beavers, 113 Ga. 398; Ivester v. City of Atlanta, 115 Ga. 853. There was sufficient evidence to authorize the jury to find that the path had been so long used by the public as a passageway over the land that the owner must have known that it was so used and have impliedly consented to its use. Consequently one using the path would not be a trespasser. But there was nothing in the evidence to authorize a finding that there was any express or implied invitation to the plaintiff to use any other part of the premises than the path. Hence when the plaintiff got out of the path he was a trespasser, and the defendants owed him no duty except not to injure him wantonly or wilfully. It may be that the defendants would be bound to anticipate that a young child might stray a few feet from the path; but the plaintiff can take nothing from this, because the evidence fails to disclose how near the path he was when he fell into the ditch. There was no allurement to attract a child from the path. The hot water could not be said to be an allurement; and besides, this court has expressly declined to extend the doctrine of the turn-table cases to meet such a case. See the Beavers case, supra. The case is in principle controlled by the case just cited. The plaintiff being, so far as the evidence discloses, a trespasser at the time he fell into the ditch, neither of the defendants was liable. The evidence demanded the verdict in their favor, and if there was any error in charging, or in failing to charge as requested, it was immaterial.

Judgment affirmed.

All the Justices concur, except Gandler, J., absent.