Bailey v. Georgia & Florida Railway

Hill, J. An action for damages was brought by the plaintiff against the defendant, for injuries alleged to have been received while alighting from a moving train, and to have been occasioned by the negligence of the defendant in failing to stop its train at the destination of the plaintiff a sufficient length of time to enable him to alight in safety. At the conclusion of the plaintiff’s evidence the court, on motion, granted a nonsuit, and to this judgment the plaintiff excepted. It appears, from the evidence in the record, that the plaintiff became a passenger on the defendant’s train at Swainsboro, with a ticket to Blun, a station a few miles from Swainsboro. He occupied a seat in the ladies’ coach, about two thirds its length from the front door. The usual and customary way for passengers to alight was from the front end of the coach. The conductor took up the plaintiff’s ticket, and he called the conductor’s attention particularly to his destination and instructed him to be sure and put plaintiff off at Blun. His reason for-this was that while at Swainsboro the plaintiff, who is a practicing physician, had an urgent call to see a patient seven or eight miles below Summertown, where plaintiff lived, and he had telephoned for his automobile to meet [140] him at Blun, where he was to get off and attend some patients, and this would hasten his visit to the other patient. The train stopped at Blun, and immediately upon its doing so the plaintiff got up, hade the gentleman in the seat Avith him good-bye, and Avent to the forward end of the train “as expeditiously as possible,” and about the time he reached the door the train began moving off, and about the time he reached the top step a man jumped on the bottom step. The plaintiff turned and went across to the rear end of the coach adjacent, and stepped off. While attempting to get off, the train was moving along slowly; “it was not going fast enough to be dangerous for me to get off.” He alighted, caught on his left foot, made a step on his right foot, and then another on his left foot, and turned loose the train; and as he did so, in an effort to catch on his right foot and bear himself away from the train, he went down on the ground and sustained the injury complained of in the petition. The train stopped at Blun between six and eight seconds. The injury occurred in the daytime. The train had run probably thirty or thirty-five feet before plaintiff got off. In view of the evidence of the plaintiff, we think it was error, under the former rulings of this court, to grant a nonsuit. In Suber v. Ga. &c. Ry. Co., 96 Ga. 42, 43 (23 S. E. 387), it was said: “It is not necessarily, as a matter of law, negligent for a person to leave a moving train. Whether it is negligent or not in a particular case must depend upon the circumstances of danger attending the act and the special justification which the person leaving the train had for doing so. Ordinarily, in eases of this kind, the question of what is or is not negligence is one for the jury; and unless the danger is obviously great, — as where the train is moving at full speed, — the court can not hold that leaving the train is,, as a matter of law, such negligence as should preclude a recovery..” Turley v. Atlanta &c. Ry. Co., 127 Ga. 594 (56 S. E. 748, 8 L. R. A. (N. S.) 695); Coursey v. Southern Ry. Co., 113 Ga. 297 (38 S. E. 866). The case of Louisville &c. R. Co. v. Edmondson, 128 Ga. 478 (57 S. E. 877), is different in its facts from the instant case. In that case the plaintiff had entered the car with the knowledge of the conductor, in order to assist on board the cars her seven-year-old child, who was going to Macon as a passenger. As she went inside the car, the conductor, contrary to his usual custom and [141] without warning the plaintiff, signaled the engineer to go ahead. The engineer, without a whistle, moved his train and rang his bell. Plaintiff walked ■ hurriedly to the door and on to the platform of the car. "When she reached the platform, “she discovered that the train was going too fast to alight with safety, and undertook to recover herself, but such was the momentum and excitement brought about by the carelessness and negligence of the agents of the defendant company, together with the great speed of the train and, jerks of the car as it ran over the crossing, that . . petitioner could not control her movements, and she, though exercising due care and caution, fell from the steps of said car upon the ground, seriously injuring and damaging her.” This court reversed the judgment overruling a demurrer in that case, and held that the injury to the plaintiff was the result of a failure on her part to exercise due care in order to avoid the consequences to herself of the alleged negligence of the railroad company. At the same time the principle ruled in the Súber and Turley cases, supra, was recognized and reaffirmed. The facts of the instant case are very different from those in the Edtiiondson case. Here the train was “moving along slowly,” and was not going fast enough to be obviously dangerous; the train had only stopped six or eight seconds at the station, and the plaintiff had walked as “expeditiously as possible” towards the front of the car in which he was riding, in order to alight from the train. In view of the evidence adduced on the trial, we can not say, as matter of law, that the dangeT was so obviously great that the plaintiff was negligent in leaving the train, so as to bar him of recovery. We think the case should have .been submitted to the jury, under proper instructions, and left for ■them to determine under the evidence as to the diligence or negligence of the respective parties. The granting of a nonsuit was erroneous. Judgment reversed. All the Justices concur.