Cent. Of Ga. Ry. Co v. Br1dwell, (Nos. 15879, 15903.)
| Decision Date | 19 May 1925 |
| Docket Number | (Nos. 15879, 15903.) |
| Citation | 34 Ga.App. 77,128 S.E. 238 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. BR1DWELL. BRIDWELL. v. CENTRAL OF GEORGIA RY. CO. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
Error from Superior Court, Wilkinson County; James B. Park, Judge.
Action by Mrs. M. A. Bridwell against the Central of Georgia Railway Company. Verdict for defendant, and to review an order granting plaintiff's motion for new trial defendant brings error, and plaintiff assigns cross-error. Reversed on cross-bill of exceptions. Main bill dismissed.
Mrs. Mary A. Bridwell brought suit against Central of Georgia Railway Company for the homicide of her husband. The petition was in two counts. The first count was predicated upon the theory of negligence, while the second count charged that the killing was willful and wanton. The defendant filed general and special demurrers to each count. The petition was amended. Thereafter the demurrers were sustained as to the first count and overruled as to the second count. The result was that the first count of the petition was stricken in its entirety. The case proceeded to trial upon the second count 1 and the trial resulted in a verdict for the defendant. The plaintiff filed a motion for a new trial containing the usual general grounds and several special grounds having reference only to the charge of the court. The court sustained the motion upon one of the special grounds and overruled it as to all other grounds, both general and special. In the main bill of exceptions the defendant excepted to the grant of the motion for a new trial, and contended that the evidence demanded the verdict rendered, and that the motion, therefore, could not lawfully be granted, regardless of any errors that may have been committed by the court in charging the jury. The defendant has brought no exceptions to the overruling of its demurrers to the second count. By a cross-bill of exceptions the plaintiff assigns error upon exceptions pendente lite taken by her to the sustaining of the demurrers to the first count of the petition, and also upon the judgment overruling the special grounds of her motion for a new trial, save the one upon which it was granted.
As shown in the opinion, it is unnecessary to set forth any of the allegations of the petition, except those contained in the first count. This count, as amended, made, among others, the following averments: That theplaintiffs husband was killed by the running of the defendant's locomotive and cars about 10 o'clock at night, when her husband was walking along a pathway on or near the railroad track, near the town of Toombsboro; that the path, with the defendant's knowledge, had been constantly and frequently used by pedestrians "as a passageway in going to and fro between points in said town and points in the neighborhood thereof" for a period of 50 or 75 years, and that because of such constant, frequent, and long use of the path, the agents and servants of the defendant in charge of its train "were bound to anticipate the presence of persons upon its railroad at the point where [the plaintiff's husband] was struck"; that on the particular occasion the decedent was walking along the path from his farm to his home in the town "when he was seized by a sudden violent illness which rendered him unable to continue his course, and insensible and unable to care for his safety, and by reason of which he sat and reclined upon the railroad"; and that, "while he was sitting and reclining upon said railroad in a helpless condition as hereinabove stated, a through freight train of defendant, moving at a very high rate of speed, " ran over him and inflicted upon him injuries from which he died. It was further alleged that the track over which the train was running at the time it approached the decedent was "perfectly straight" for a distance from him of 1, 200 yards, and that there was nothing to prevent the engineer and the fireman from seeing him and his perilous and helpless condition in ample time to stop the train before striking him, if they had kept a proper lookout. The defendant's negligence was alleged to consist in the failure of the engineer and the fireman to anticipate the presence of persons upon the railroad track at the time and place in question, in running the train at that point "too fast, " namely, at a speed of 20 miles per hour, and in failing to keep such a lookout as would have enabled them to discover the presence of the decedent and his "perilous and helpless condition aforesaid" and to stop the train in time to avoid striking him.
T. M. Cunningham, Jr., and H. Wiley Johnson, both of Savannah, for plaintiff in error.
Jno. R. L. Smith & Grady, C. Harris, and Jos. Le Conte Smith, all of Macon, for defendant in error.
BELL, J. (after stating the facts as above). [1] 1. As we will later show in this opinion, it is proper that we first dispose of the exceptions taken in the cross-bill to the judgment sustaining the demurrers to the first count of the petition. Hereafter, in using the word "petition, " we are to be understood as referring to the first count, unless it is otherwise stated. With respect to the special demurrers, suffice it to say that they were without merit after the petition was amended; nor do we think that the petition was subject to the general demurrer. It cannot be said as a matter of law that there was no duty of care upon the defendant, under the facts alleged, to anticipate the presence of the decedent at the time and place in question (Lowe v. Payne, 156 Ga. 312, 118 S. E. 877; Bullard v. Southern Railway Co., 116 Ga. 644 [1], 43 S. E. 39; Pope v. Seaboard Air-Line Railway, 21 Ga. App. 251 [1], 94 S. E. 311; Central of Georgia Ry. Co. v. Thompson, 25 Ga. App. 715 [1], 104 S. E. 515), nor that the allegations of the petition failed to show that there was a breach of a duty of diligence toward him. It would be within the province of the jury to decide what was due care on the part of the railroad company and its employees with respect to the speed of the train and the other matters charged in the petition as negligence. Davis v. Whitcomb, 30 Ga. App. 497 (13), 118 S. E. 488; Crawford v. Southern Railway Co., 106 Ga. 870 (1), 33 S. E. 826; Louisville & Nashville R. Co. v. Cline, 136 Ga. 863 (1), 865, 72 S. E. 405; Harris v. Central Railroad, 78 Ga. 525 (6), 3 S. E. 355; Pope v. Seaboard Air-Line Ry., 21 Ga. App. 251 (1), 94 S. E. 311; Western & Atlantic R. Co. v. Davis, 21 Ga. App. 461, 94 S. E. 660; Chattanooga Ry. & Lt. Co. v. Wallace, 23 Ga. App. 554 (1), 99 S. E. 57; Tice v. Cen. of Ga. Ry. Co., supra; Western & Atlantic Railroad v. Reed, 33 Ga. App. 396 (2), 126 S. E. 393. We might hold, as a matter of law, that some lower rate of speed would not be negligent, but we cannot, under all the facts appearing, make such a holding in regard to the speed alleged in the instant case.
Of course, if it affirmatively appeared from the petition that the decedent, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence, if existing, or that his injury and death were due to his own negligence, the petition would be subject to general demurrer, even though it may show that the defendant was negligent. But it is unnecessary in a case of this sort for the plaintiff to negative the negligence or want of ordinary care on the part of the person injured or killed. That is a matter of defense, and the petition in this respect will be good, unless it affirmatively appears that the injury or death was the result of the plaintiff's own negligence or failure to exercise ordinary care. Woolworth Co. v. Wood, 32 Ga. App. 575 (2) 124 S. E. 110, and citations. It was held in the Lowe Case, supra, that where a person is sitting or lying in an exposed position on or near a railroad track, and such conduct is unexcused and unexplained, save that it indisputably appears that he had been drinking intoxicating liquors, there can be no recovery for his injury or death by the mere negligence of the railroad company in the operation of itstrain, a recovery being precluded because of his own gross negligence; but it cannot be said in the instant case that the decedent's presence upon the railroad track was negligent, when it is explained by the fact, as alleged in the petition, that he was seized by a sudden violent illness which rendered him unable to continue his course, and insensible and unable to care for his safety, and by reason of which he sat and reclined upon the railroad. In Snowball v. Seaboard Air-Line Railway, 130 Ga. 83 (1), 60 S. E. 189, the Supreme Court said:
"If the deceased had been seized by a sudden accession of illness, and had fallen unconscious on the track, he would not have been wanting in care so as to defeat a recovery for his death, if the agents of the defendant could have averted the killing in the exercise of proper care."
See, also, Payne v. Hayes, 25 Ga. App. 730 (1), 104 S. E. 917.
We think that, as against a general demurrer, the petition set forth a cause of action and that the court improperly dismissed it.
2. The court having erred in sustaining the demurrers to the petition, all else that was done was nugatory, and the plaintiff is entitled to a new trial, regardless of whether the evidence demanded the verdict rendered under the second count, and irrespective of any error in the court's charge. The record, therefore, seems to present a proper case for the application of the rule that, when this court or the Supreme Court has before it both a main bill of exceptions and a crossbill, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first, and, if the judgment j therein excepted to is reversed, the writ of error issued upon the former will be dismissed. Chidsey v. Brookes, 130 Ga. 218 (5), 60 S. E. 529, 14 Ann. Cas. 975; Moore v. Kiser, 144 Ga. 460 (2), 87 S. E. 403; De Loach v. Georgia, etc., R. Co., ...
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