Southern Railway Co. v. Parkman

Sutton, J. The plaintiff was injured at a place on The railway tracks where he had no right to be. He was not injured at a public crossing, and was a trespasser, eve'n though it is alleged that the defendants were aware of the fact that people crossed “Railroad Avenue” at the point where the plaintiff sustained his injury and that this was done without their disapproval. “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 railway 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 Railway Co., 45 Ga. App. 728 (165 S. E. 913); Southern Railway Co. v. Barfield, 112 Ga. 181 (37 S. E. 386). In fact, it is conceded by counsel for the plaintiff that at the time and place of the injury the plaintiff was a trespasser. What is the duty of the defendants towards a trespasser? “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 Railway Co., supra; Young v. South Georgia Railway Co., 34 Ga. App. 537 (130 S. E. *72 542); Central of Georgia Ry. Co. v. Stamps, 48 Ga. App. 309 (3) (172 S. E. 806); Ashworth v. Southern Ry. Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592). “ Where a number of persons habitually, with the knowledge and without the disapproval of a 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 track at this point; and 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.” Bullard v. Southern Railway Co., 116 Ga. 644 (43 S. E. 39); Ashworth v. Southern Railway Co., supra; Western & Atlantic R. Co. v. Michael, 175 Ga. 1, 10 (165 S. E. 37). Wilful and wanton misconduct is not 'alleged against the defendants, and “The mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and a time when it was their duty to anticipate the presence of trespassers, and thereafter to take such needful and proper measures for his protection as ordinary care might require, might amount to a lack of ordinary care on the part of the railway company, but would not, in and of itself, amount to wilful and wanton misconduct.” Ham montree v. Southern Railway Co., supra; Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). The duty of the railway company to discover the presence of one upon its right of way, when it may reasonably be anticipated that persons may be present thereon, does not relieve him of the duty to exercise ordinary-care for his own safety. Southern Railway Co. v. Slaton, 41 Ga. App. 759 (2) (154 S. E. 718); Leverette v. Louisville & Nashville Railroad Co., 38 Ga. App. 155 (142 S. E. 905); Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (5) (127 S. E. 274). “The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence.” Western & Atlantic Railroad Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. R. A. 802), and many others. It is, of course, well settled that one can not recover for the negligence of another if by the exercise of ordinary *73 care and diligence lie could have avoided the consequences to himself of such other person’s negligence. There is also of force in this State a rule of comparative negligence, under which if both parties are at fault, with respect to the injury sustained by the plaintiff, and the latter could not by the exercise of ordinary care and diligence have avoided the consequences to himself of the other’s negligence, then notwithstanding that he may have been negligent he would be entitled to recover if his negligence was less than that of the other party, but the amount of damages shall’ be diminished in proportion to the amount of fault attributable to him. “Questions of negligence, proximate cause, and failure to exercise ordinary care to avoid the consequences of another’s negligence are questions of fact which are ordinarily for determination by a jury under proper instructions from the court as to the applicable principles of law, but in plain and indisputable eases the court may determine them as a matter of law.” Dodson v. Southern Railway Co., 55 Ga. App. 413 (8), 419 (190 S. E. 392). There being no statute in this State requiring one to stop, look, and listen before crossing a railroad track, it is not negligence per se where one fails to do so. Applying the above-stated principles of law to the allegations of the petition in the present case, we think that a cause of action was set forth against the defendants and the court did not err in overruling the general demurrers. Undoubtedly acts of negligence were alleged against .the defendants, and a jury question is presented as to whether or not the plaintiff was negligent in crossing the track of the defendant railway at the time and place mentioned, and whether or not by the exercise of ordinary care he could have avoided the consequences to himself of the defendants’ negligence. It is alleged that the plaintiff was not aware of the approach of the train, that it was coasting at a dangerous rate of speed, more .than forty miles an hour, not making the noise usually incidental to the operation of a train or locomotive, that the headlight of the locomotive did not shine upon the track but to the rear and westerly of the plaintiff, and that no warning of any kind was given him by the defendants. It can not be said as a matter of law, as contended by the plaintiff in error, that from the allegations of the petition the plaintiff was negligent or that by the’ exercise of ordinary care he could have avoided the consequences to himself of the defendants’ negligence. *74 We think, however, that under the evidence it must be said as a matter of law that the proximate cause of liis injury was the plaintiff’s own negligence, and that by the exercise of ordinary care he could have avoided the consequences of the defendants’ negligence. It appears that while the plaintiff stated that he did not know that the train “passed along there about that time,” the time when he was injured, he testified: “I knew a train came into Columbus some time in the early part of the night. I mean by early part of the night between seven and nine when I went on this track.” He further testified: “There is nothing wrong with my hearing that I know of. There is nothing wrong with my sight. From the time I left my automobile until I went to make the turn to go to number 1810 I did not look to see if the train was coming. . . I never looked down the track this way to see if the train was coming. . . It was around eight o’clock at night. . . The lights from the engine were deflected on the houses on the west. Had I looked back I could have seen the headlight. If I had looked back I could have seen the train. . . Before I was hurt and before 1 attempted to cross the track I was about four feet from the track. . . I think I was in a place of safety. If at that point I had looked back, I could have seen the headlight of a train rounding the curve for a distance, say, of fifty or sixty feet. I knew I was about to cross the railroad track. I knew the railroad track was a place of danger. I knew the rails were elevated. I knew there was danger there. I knew trains were likely to come along there at any time. . . I just went blindly on the track in front of the train.” Construing the testimony most strongly against the plaintiff, although he stated that he did not know that a train would come along at eight o’clock he knew that the train might come along at any time between seven and nine o’clock that night, the interval in which he attempted to cross the track. Having such knowledge he failed to use his sense of sight to determine the close proximity of the train, and, instead, allowed himself to become absorbed or engrossed in the undertaking of crossing the track, and was oblivious to everything else. It is contended by counsel for the plaintiff that the elevated track and crossties, the ditch on the one side, and the darkness of the night, required great care and attention to pass over them without injury, and that his engrossment in *75 this respect palliates or justifies any failure on his part to contemplate the probability of an approaching train. We are cited to cases dealing with the principle contended for, but they relate to situations where the engrossment of the complainant was brought about by a dangerous, active force put in operation by the defendant, such as the running of a train from an opposite direction, which prompted the plaintiff, in the situation in which he was placed, to take action to safeguard himself therefrom, and in consequence of which he negligently subjected himself to another danger. It could not reasonably be contended that the mere engrossment of one could palliate or justify his negligence. If a person, for example, were walking on the track of a railway and became engrossed in a near-by circus parade or the progress of an airplane, his conduct in allowing himself to be diverted from his duty of avoiding the danger of an approaching train would aggravate rather than extenuate negligence on his part. The plaintiff in the present case was not, by reason of the track, crossties, ditch, or the darkness of night required to act at all. He was admittedly in a place of safety before he attempted to cross the track. No act of the defendants prompted him to abandon it. What he did was self-instigated. His engrossment was in no wise contributed to by the defendants, and from it he can not justly seek any palliation or justification of any negligence on his part. By the exercise of ordinary care he could, in our opinion, have avoided the consequences of the defendants’ negligence, and his own negligence was the proximate cause of his injury and damage. The court erred in overruling the general grounds of the motion for new trial. A special ground of the motion for new trial assigns error on a portion of the charge of the court to the effect that it was not applicable to a “voluntary trespasser,” as was the plaintiff in the present case. This contention is without merit, but as the case is being reversed on other grounds any detailed discussion is deemed unnecessary. It is further contended in this ground that certain language of the portion excepted to had the effect of instructing the jury that the defendants should be discharged from liability under the circumstances stated in the charge only in the event that the plaintiff could, by the exercise of ordinary care and diligence, liave avoided the defendants’ negligence, and that it had the effect’ *76 of eliminating from the jury's consideration the defense of the defendants, supported by evidence, that the injury of the plaintiff was due solely to his own fault and negligence. Inasmuch as in connection with the portion complained of and immediately thereafter the court charged the jury, “If you should find from the evidence that the plaintiff was negligent, and that such negligence was the proximate cause of his injury, then the plaintiff can not recover of the defendant. If you find that he received the injuries, gentlemen, but it was his negligence and not that of the defendant, he could not recover of the defendant,” the objection is not well founded. Judgment reversed. Felton, J., concurs.