Central of Georgia Ry. Co. v. Bridwell

• Decision Date: 19 May 1925
• Docket Number: 15879,15903.
• Citation: 128 S.E. 238,34 Ga.App. 77
• Parties: CENTRAL OF GEORGIA RY. CO. v. BRIDWELL. BRIDWELL v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Court of Appeals

128 S.E. 238

34 Ga.App. 77

CENTRAL OF GEORGIA RY. CO. v. BRIDWELL.

BRIDWELL v. CENTRAL OF GEORGIA RY. CO.

Nos. 15879, 15903.

Court of Appeals of Georgia, Second Division

May 19, 1925

Syllabus by the Court.

In this action for the homicide of the plaintiff's husband, who was killed upon the defendant's railroad track by the running of its engine and cars, the first count of the petition did not as a matter of law fail to show the breach of a duty of diligence owing by the defendant to the decedent, nor affirmatively disclose that the decedent's death was caused by his own negligence or want of ordinary care. A cause of action was set forth, and the court erred in sustaining the demurrers and striking this count.

Where a suit for a homicide is brought in two counts, in the first of which the plaintiff seeks a recovery for mere negligence, and in the second of which a recovery is sought as for a willful and wanton killing, and, after the first count is erroneously stricken on demurrer, the case proceeds to trial upon the second count, and the trial results in a verdict for the defendant, which the court subsequently sets aside on the plaintiff's motion for a new trial, and where the defendant brings to this court a main bill of exceptions complaining of the grant of the motion, and the plaintiff, by a cross-bill, excepts to the judgment striking the first count, the cross-bill will be disposed of first, and, the judgment complained of in that being reversed, the writ of error issued upon the main bill will be dismissed.

"While under the law of the Code it is the general rule that a person cannot recover, despite the negligence of the railway company, if by the exercise of ordinary care on his own part the consequences of the company's negligence could have been avoided, still this rule does not have application where the negligence on the part of the company is adjudged to have been wanton and willful." Tice v. Central of Georgia Ry. Co., 25 Ga.App. 346 (2e), 103 S.E. 262.

Where an action is brought against a railway company for the killing of a person upon its railroad track by the running of its engine and cars, the plaintiff, on proving that the death occurred by the means alleged, and that the circumstances were such that the servants of the railway company were under a duty to anticipate that a person would be upon the track at the particular time and place in question, would be entitled to the benefit of the presumption arising under section 2780 Civil Code, although the killing was alleged to have been willful and wanton.

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.

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. 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 its train, 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 cross-bill, 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 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., 144 Ga. 678 (3), 87 S.E. 889; Wood v. Turner, 147 Ga. 93, 92 S.E. 878; Betts-Evans Trading Co. v. Bass, 2 Ga.App. 718 (1), 59 S.E. 8; Central of Georgia Ry. Co. v. Waldo, 6 Ga.App. 840 (2), 65 S.E. 1098.

The cross-bill of exceptions is not controlling in the sense that a decision of the questions therein raised would amount to a final disposition of the case in the court below, nor would it be controlling, unless we conceived that error was committed as alleged in the striking of the first count of the petition; but, since we must hold that there was error in that judgment, a decision upon the cross-bill must necessarily dispose of the entire case as made in this court by the present record. Gay v. Gay, 108 Ga. 739 (1), 32 S.E. 846; Jordan v. Georgia Southern & Florida R. Co., 105 Ga. 274 (1), 30 S.E. 748.

Any other treatment of the case could but lead to confusion and absurdity. If we should undertake a decision of the question raised by the main bill of exceptions--that is, whether the court erred in granting the new trial--we would be confined to a determination alone of whether the evidence demanded the verdict rendered. Carr v. Carr, 157 Ga. 208 (1), 121 S.E. 227. If we answered this question in the affirmative and therefore concluded that relatively to the second count alone the grant was error, we would nevertheless be powerless to reverse the grant and restore the verdict, because a new trial would still result from the antecedent error in striking the first...