Etheredge v. Cent. Of Ga. Ry. Co
| Decision Date | 12 May 1905 |
| Citation | 122 Ga. 853,50 S.E. 1003 |
| Parties | ETHEREDGE. v. CENTRAL OF GEORGIA RY. CO. et al. |
| Court | Georgia Supreme Court |
NEGLIGENCE—DANGEROUS PREMISES — INJURY TO LICENSEE—EVIDENCE.
1. Consent of an owner of land for the public to use as a passageway a path across his land may be inferred from the fact that the path has been for some time in the past continuously used by the public for this purpose without objection from the owner, and from such implied consent a duty arises to protect persons using the path against hidden dangers which may be iucurred by such use.
[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 42-47.]
2. But the owner is under no duty to persons using the path to keep his entire premises in safe condition for pedestrians; and if a person using the path leaves it, and wanders some distance from the path, and falls into a ditch partly concealed from view, the owner would not be liable. In such a case it is immaterial that the person injured was a child of tender years.
[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 42-47.]
3. Where suit is brought by a person injured in the manner indicated in the note immediately preceding, it must appear, in order to authorize a recovery, not only that the path was used by him with the express or implied consent of the owner, but that he fell into the ditch from the path, or near thereto.
[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 42-47.]
4. Applying these rules to the facts of the present case, the evidence authorized a finding that the plaintiff was using the path with the implied consent of the owner of the premises through which it ran, but there was no evidence to show that the plaintiff was using the path at the time the injuries were received. The verdict in favor of the defendants was therefore the only lawful verdict that could have been rendered in the case, and the court did not err in refusing to grant a new trial.
(Syllabus by the Court.)
Error from City Court of Macon; Robt. Hodges, Judge.
Action by Earle Etheredge, by his next friend, against the Central of Georgia Railway Company and another. Judgment for defendants, and plaintiff brings error. Affirmed.
Earle Etheredge, a boy between five and six years of age, was injured by falling into a ditch containing hot water. The ditch was located on the premises of the Central of Georgia Railway Company, and the water was turned into the ditch by the Central City Iceworks. with the consent of the railway company. The boy, by his next friend, sued both companies for damages. The evidence for the plaintiff showed that the boy and his grandfather started down a path on the premises of the railway company, for the purpose of going to the office of the boy's father, in a building of the Georgia Southern Railroad Company, on the other side of the ditch. The path led up to and extended from the ditch. The path was well beaten, and much used by the public. It was used by the employes of the Georgia Southern Railroad Company, but the office of the boy's father was more easily accessible by another route. The earth about the ditch where the boy fell in was piled up, and was wet and slippery. The ditch was thereby somewhat obscured. Just before the boy fell into the ditch his grandfather had given him permission to "roll, " and the grandfather had sat down under a haw bush near by to wait a few minutes. The evidence does not disclose whether, when the boy fell, be was in the path, or, if not, how near thereto he was. The grandfather had never used this path before, and the ditch was dug across the path a short time before the accident occurred. There was no warning or signal placed in the path, or near it, to indicate that an open ditch was there. The evidence for the defendant contradicted many of the material facts shown by the plaintiff's evidence. The jury found for the defendants. The plaintiff filed a motion for a new trial, complaining of numerous charges of the court, to the effect that the boy's right to recover depended upon whether, under all the circumstances of the case, he was using the path with the permission, either express or implied, of the defendants or either of them. The motion also assigns error upon the refusal to give a request to charge specifically that the jury were authorized to consider the place where the accident occurred, and how long the premises had been...
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