Atlantic Coast Line R. Co. v. Barton

• Decision Date: 20 January 1914
• Docket Number: 5205.
• Citation: 80 S.E. 530,14 Ga.App. 160
• Parties: ATLANTIC COAST LINE R. CO. v. BARTON.
• Court: Georgia Court of Appeals

80 S.E. 530

14 Ga.App. 160

ATLANTIC COAST LINE R. CO. v. BARTON.

No. 5205.

Court of Appeals of Georgia

January 20, 1914

Syllabus by the Court.

Where the plaintiff bases his right to recover upon a foreign law the law must be pleaded, and mere reference to the volume and section of the compilation in which the law is alleged to appear is not sufficient.

The presumption of negligence which the law raises against a railway company upon proof of an injury by the running of its cars is confined to the allegations of negligence upon which recovery for the injury is sought.

Where a person boards a railway train and declines to produce a ticket or tender a cash fare, the servants of the company have the right to eject him from the train. In such a case he is to be treated as a trespasser, and not as a passenger.

Where a person in a drunken condition lies or sits down upon a railroad track at a place other than a public crossing, the company owes him no duty save that of ordinary care not to injure him after he is discovered upon the track.

(a) An allegation that the injury occurred at a place where a road crosses the tracks of the defendant company is not a sufficient averment that the place of the injury was at a public road crossing.

Where the servants of a railway company eject from a train, on account of his refusal to pay fare, a person in such a condition of intoxication as to be wholly unable to take precautions for his safety, and, after being thus ejected, he turns and sits or lies down upon the railway track, and is injured by another locomotive of the defendant, it is for the jury to say whether or not the condition of the person was such as to render wrongful his ejection at the place where he was removed from the train, and whether or not the company's servants ought, in the exercise of ordinary care, to have reasonably anticipated that the person ejected might go upon the track and be injured.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by James Barton against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

P. W Meldrim and Shelby Myrick, both of Savannah, for plaintiff in error.

Oliver & Oliver, of Savannah, for defendant in error.

POTTLE J.

The plaintiff sued for personal injuries received as a result of being struck by a locomotive engine upon one of the defendant's tracks. The court overruled a general demurrer to the petition, and this judgment is assigned as error. The allegations of the petition are substantially as follows: The plaintiff boarded a train of the defendant at Yemassee in the state of South Carolina for the purpose of being transported as a passenger to Savannah, Ga. He had previously procured a ticket, and had secured a seat in the smoking compartment of the white passenger coach. Before taking passage on the train the plaintiff had purchased a quantity of intoxicating liquors, and had imbibed some of the same, but at the time he boarded the train he was not so much under the influence of the liquor as to be unable to take care of himself. After he entered the warm coach the liquor which he had consumed began to affect him, and when the conductor came for his ticket he was unable at the moment to find it. The conductor was impatient, and, without giving petitioner time to find his ticket, stopped the train and ejected him therefrom. The plaintiff had sufficient cash with which to pay his fare, and would have paid it if the conductor had permitted him to make payment, but the conductor, without affording him sufficient opportunity to make payment or to find his ticket, stopped the train and led him to the rear platform and placed him on the ground. The point at which he was ejected was about 200 yards north of a switch, and about 100 yards south of a trestle. He fell to the ground upon the tracks of the defendant company. He remembers nothing as to what occurred after he reached the ground and the train pulled away, as he had by this time become unconscious and was wholly incapacitated from caring for himself. "Your petitioner shows that his helpless condition was clearly apparent to the conductor of said passenger train, and the conductor knew, or in the exercise of ordinary care should have known, that in ejecting petitioner from said train and in leaving him on the tracks of said defendant company, where he was unable to exercise care for his own safety and protection, he was subjecting petitioner to peril and hazard of his life." Petitioner remained on the track, where he fell, for some time and until a freight train, passing from Charleston to Savannah arrived. At that time the petitioner was sitting on the track, and the engine of the freight train struck him and knocked him from the track a distance of 10 or 12 feet, inflicting severe injuries. The point where the plaintiff was ejected from the train and where he was struck by the freight train is used as a road crossing. The plaintiff alleges that the defendant was negligent in the following particulars: (1) In ejecting the plaintiff from the passenger train without cause; (2) in ejecting him from the train without affording him sufficient time to deliver his ticket; (3) in not permitting him to pay the cash fare; (4) in not demanding and receiving from him the money necessary for the payment of fare; (5) in ejecting him from the train while he was in a helpless condition and leaving him upon the tracks of the defendant company at a point where the conductor knew, or in the exercise of ordinary care should have known, that the plaintiff's life and person would be imperiled from other trains passing along the track; (6) in that the engineer of the freight train which struck the plaintiff did not exercise proper care and caution to prevent striking him; and (7) in that the engineer of the freight train ran the engine without due care as it approached the place where the road crossed the tracks of the defendant company. The plaintiff bases his right to recover upon the law of South Carolina, which he alleges to be embodied in the Code of Laws of South Carolina for 1912, vol. 2, § 216.

1. While there is more or less confusion in some of the decisions on the subject, it is settled by the decisions of the Supreme Court that where a plaintiff bases his right to recover on a foreign law, the law must be pleaded and proved. Southern Express Co. v. Sottile, 134 Ga. 41, 67 S.E 414; Southern Express Co. v. Hanaw, 134 Ga. 446, 67 S.E. 944, 137 Am.St.Rep. 227. If the foreign law is properly pleaded, it may be that it need not be formally introduced in evidence. If the law is brought to the attention of the court and properly applied. C. & W. C. Ry. Co. v. Lyons, 5 Ga.App. 668, 63 S.E. 862; Missouri Life Ins. Co. v. Lovelace, 1 Ga.App. 446, 58 S.E. 93. It is clear, however, under all of the decisions, that the law must be pleaded, or else the court will presume that the common law is of force, and will apply common-law principles, at least as to causes of action arising in one of the 13 original states or in a state which was carved from them. To plead a foreign law it is not enough to refer merely to the volume in ...