Hammontree v. Southern Railway Co.

Jenkins, P. J. 1. 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 (Ashworth v. Southern Ry. Co., 116 Ga. 635, 43 S. E. 36, 59 L. R. A. 592), although a failure to exercise ordinary care to prevent injury to a trespasser after his presence has become actually known may amount to wantonness. Charleston &c. Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064); L. & N. Railroad Co. v. Plunkett, 6 Ga. App. 684 (65 S. E. 695). 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. Southern Ry. Co. v. Barfield, 112 Ga. 181 (37 S. E. 386). Even where a person on the track is in fact discovered, it is the general rule that a railway 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. 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. Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). What amounts to a qualification of this rule is that if the presence of the trespasser on the track at the time and place of the injury is brought about by such peculiar facts and circumstances as would free him from guilt of a lack of ordinary care in thus exposing himself, the company would then be liable for a mere lack of ordinary care on its part in failing to anticipate his presence at a time when and a place where it was charged with such duty, and in thereafter failing to take such precautions for his safety as might seem reasonable. Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274) ; Parish v. Western & Atlantic R. Co., 102 Ga. 285 (29 S. E. [729] 715, 40 L. R. A. 364) ; Fairburn & Atlanta Ry. Co. v. Lathem, 26 Ga. App. 698 (107 S. E. 88) ; Georgia Railroad & Banking Co. v. Dawson, 37 Ga. App. 542 (141 S. E. 57). Decided September 21, 1932. Rehearing denied October 1, 1932. B. G. Pittman, W. B. Mann, W. G. Mann, for plaintiff. O. B. Hardin, Sapp & Maddox, Maddox, Matthews & Owens, for defendant. 2. In the instant case the suit against the railway company on account of the homicide of the plaintiff’s husband was brought in two counts; the first count charging mere negligence, but without showing that the decedent occupied any position other than that of a trespasser at the time of the injury, and without showing that his presence on the track at the time and place of the injury was brought about by such circumstances as would relieve the decedent from a failure to exercise ordinary care on his own part. The second count set up wilful and wanton negligence on the part of the defendant. The court overruled a motion to dismiss the first count, to which ruling exceptions pendente lite were preserved by a cross-bill of exceptions. After the introduction of testimony on both sides, the judge directed a verdict generally in favor of the defendant, without stating on which count or on what ground he based his action; but the colloquy between the judge and counsel, preserved in the record, indicates that in the judge’s opinion the evidence demanded a finding that the decedent deliberately committed suicide by placing his head upon the track just in front of the approaching train. The testimony of the only eye-witness to the homicide supported this view, but it was sought to impeach the testimony of this witness by proof of previous contradictory statements. It therefore can not be held as a matter of law that the evidence demanded a finding of suicide, or that the plaintiff failed to make out her case as laid in the first count of the petition. The court having held that the first count, charging mere negligence, set forth a cause of action, this ruling became the law of the ease until set aside. Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 (2) (46 S. E. 659). Under the law as set forth in the preceding division of this syllabus, the action of the court in failing to sustain the demurrer to the first count of the petition was erroneous, and it therefore becomes necessary to reverse the ruling refusing to strike the first count of the petition. All subsequent proceedings being nugatory, it is not in order to pass upon or determine whether or not the plaintiff made out or failed to make out a case of wilful and wanton negligence under the second count of the petition. See, in this connection, Lowe v. Payne, supra; Young v. South Georgia Ry. Co., 34 Ga. App. 537 (130 S. E. 542). Accordingly, the judgment complained of in the cross-bill of exceptions is reversed, and, that ruling being controlling, the main bill of exceptions must necessarily be dismissed. Judgment reversed on the cross-bill of exceptions; main bill of exceptions dismissed. Stephens and Sutton, JJ., concur.