Goswick v. Western & Atlantic Railroad

Stephens, J. 1. The act of a trespasser in going upon a railroad-track and walking along the track with his back to a moving train approaching from the rear which he did not see or hear because his attention was attracted to another train passing on a parallel track twelve or fifteen feet from him and he was engrossed in watching this train and in keeping a safe distance from it, was not, as a matter of law, negligence which bars a recovery for his homicide caused by his being run over by the approaching train, when, according to established usage and a custom known to the — 165 — engineer of the latter train, pedestrians walked along the track at this place, and the engineer of this train was under a duty to anticipate the presence of pedestrians on the track at the place where the homicide occurred, and by the exercise of ordinary care he could have discovered the presence of the pedestrian on the track in time to avoid injuring him, and by the exercise of ordinary care, after discovering him, might have avoided injuring him. Phillips v. East Tenn. &c. Railway Co., 87 Ga. 272 (13 S. E. 644); Wright v. Southern Railway Co., 139 Ga. 448 (77 S. E. 384); Walker v. Western & Atlantic Railroad, 146 Ga. 296 (91 S. E. 44); Seaboard Air-Line Railway Co. v. Parriett, 33 Ga. App. 576 (127 S. E. 815); Vaughn v. Louisville & Nashville Railroad Co., 53 Ga. App. 135 (185 S. E. 145); Thompson on Negligence, §§ 1712, 1748. This ruling is not in conflict with Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274), where it was held that where a person was killed b.y an approaching train while walking along a railroad-track with his back to the train, where he did not see the train and did not hear it because of noises which interfered with his hearing, he was guilty of negligence barring a recovery. It did not there appear, as in the ease now before this court, that the decedent’s attention was diverted by his being engrossed in watching a passing train for his own safety and in keeping a safe distance from it. This is a vital distinction. It is a question of fact for a jury whether the decedent’s being so engrossed for his own safety rendered his failure to become aware of the approach of the train from behind under the circumstances negligence barring a recovery. See Smith v. Central Railroad &c. Co., 82 Ga. 801, 803 (10 S. E. 111). See the distinction of this case in Seaboard Air-Line Railway Co. v. Parriett, supra. The ruling in Lowe v. Payne, 156 Ga. 312 (118 S. E. 924), in which the Supreme Court answered a certified question propounded by the Court of Appeals, is distinguishable. In that case, in which it was held that the act of the decedent who was run over and killed by a railroad-train while he was lying in a drunken condition on or near a railroad-track, was negligence barring a recovery for his homicide, notwithstanding the negligence of the defendant railroad company in failing to anticipate the presence of people on the track at the time and place, etc., the act of the decedent was as a matter of law assumed as “unexplained and unexcused negligence,” — 166 — whereas in the case now before the court it does not appear that the act of the plaintiff's husband in walking' along the railroad-track under the conditions indicated was necessarily negligence as a matter of law; but whether he was negligent under the circumstances, and whether such negligence, if any, barred a recovery, are questions of fact for a jury. Besides, in the Lowe case the decedent's attention was not diverted in the interest of his safety, as in the case now before the court. 2. Where, at a place where a pedestrian walking along a railroad-track was killed by an approaching train, pedestrians customarily, with the knowledge of the agents of the railroad company in the operation of the train, walked along the track, the engineer was under a duty to exercise ordinary care in anticipating the deceased's presence upon the track and to take reasonable precautions not to injure Mm; and it is a question of fact whether the engineer of the train was guilty of negligence proximately causing the homicide, in failing in the daytime to see the deceased on the track, and in failing to give him warning of the approach of the train by ringing the bell or blowing the whistle, and in operating the train at a dangerous rate of speed under the circumstances. Ashworth v. Southern Railway Co., 116 Ga. 635 (43 S. E. 36, 59 L. R. A. 592); Bullard v. Southern Railway Co., 116 Ga. 644 (43 S. E. 39); Western & Atlantic Railroad Co. v. Michael, 175 Ga. 1 (6) (165 S. E. 37); Central of Georgia Railway Co. v. Thompson, 25 Ga. App. 715 (104 S. E. 515); Southern Railway Co. v. Slaton, 41 Ga. App. 759 (2), 762 (154 S. E. 718). 3. In a suit by the wife of the deceased against the railroad company, to recover damages for the homicide, the petition in count 2, under the above rulings, set out a cause of action, and the court erred in sustaining the general demurrer thereto. The court having erred in sustaining the demurrer to count 2 of the petition, the subsequent proceedings, which resulted in the grant of a nonsuit on the trial of the case under count 1, which alleged that the husband of the plaintiff was killed by the wilful and wanton conduct of the agents of the defendant in the operation of the train, were nugatory. Judgment reversed. Sutton, J., concurs, Jenkins, P. J., dissents,