Harris v. Southern Railway Co. , 129 Ga. 388 ( 1907 )

Lumpkin, J.

(After stating the facts.)

1. The special demurrer attacks almost every allegation in the-petition. As we shall affirm the judgment sustaining the general demurrer, it will not be profitable to deal at length with the various grounds of the special demurrer. Some of them were well taken, and some were not. The plaintiff in his petition must allege facts, not merely conclusions. General allegations that the defendant was negligent, or that the plaintiff was injured by the negligent conduct of the defendant, or the like, will not alone withstand a special demurrer. The pleader should state wherein the negligence consisted. He must plainly, fully, and distinctly set forth his cause of action. If he has done this, he is not required to enter into elaborate statements of minutiae. If he Sets forth the negligent conduct complained of, a subsequent reference to it as the negligence above stated, or “above enumerated,” does not render the petition demurrable..

2. Ordinarily a person who is injured by a railway train is not required to allege, as a part of his case, that he was without fault or negligence. But if the 'facts alleged in his declaration show that he was wanting in ordinary care, the point may be raised by demurrer. It is a familiar rule that pleadings are to be construed most strongly against the pleader. In the light of this ride, how stands the plaintiff’s case? He alleges that the defendant’s train was running very rapidly in passing over the crossing and approaching the station close by; that there was negligence both in not having the engine under control, and in not keeping a lookout. But what does he show as to himself? He does hot deny that he saw the engine approaching at a rapid rate of speed, or that he knew that the speed was not checked, or that there was no lookout kept. Indeed, so far as the petition shows, he is to be taken as having full knowledge of the dangerous position he assumed in going upon the track. He alleges that the engineer could have seen him; and it would seem that he could as easily have seen the engine. He says, generally that there was “such a negligent rate of speed” as he did not know of; but he does not say that he did not see the rapidly moving train. It does not appear how far distant the engine was when he undertook to cross, but apparently he stepped immediately in front of it, since he alleged that “as the plaintiff stepped upon the track, the engine of the northbound passenger-train struck the plaintiff.” If it struck him as he stepped upon the track, he must have gone on the track very close in front of it. It was not stated whether the engine had already passed beyond the road crossing before he made his attempt to go in front of it. We have, therefore, presented. to us a case where the plaintiff voluntarily went upon a railroad track immediately, or almost immediately, in front of a rapidly moving train, with knowledge of the danger, and miscalculated on his ability to cross the track before being struck. Such a declaration does not authorize a recovery. Thomas v. Central Ry. Co., 121 Ga. 38 (48 S. E. 683); Atlanta Railway Co. v. Owens, 119 Ga. 833 (47 S. E. 213); Ivy v. East Tenn. Ry. Co. 88 Ga. 71 (13 S. E. 947).

Under the ruling above made, it is not necessary to discuss the effect of the law in regard to public crossings, in determining the question of the existence of negligence on the part of the railroad company relatively to persons who are near such crossings.

Judgment affirmed.

All the Justices concur.