Central of Georgia Ry. Co. v. Pelfry
| Decision Date | 07 May 1912 |
| Docket Number | 3,961. |
| Citation | 74 S.E. 854,11 Ga.App. 119 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. PELFRY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Ordinarily a railway engineer is not bound to keep a lookout for a trespasser, and owes him only the duty to use ordinary care not to injure him after his presence in a perilous position is discovered. But if with the knowledge of the company its tracks at a given point have been used for many years longitudinally by pedestrians as a footway, the amount of care and caution required in running the trains is to some extent to be measured by the frequency and publicity of such use.
If a railway engineer sees a person lying on the track at some distance away, and honestly mistakes him for an inanimate object, failure to check the speed of the train or take other precautionary measures will not render the company liable but if, after seeing a suspicious object upon the track at such distance that it cannot be distinguished, the engineer increases the speed of the train, takes his eyes from the track, and, after approaching too near to stop the train again looks around, and for the first time discovers a human being prone upon the track, in a helpless condition, and runs over and kills him, the company will be liable, even though the deceased was a trespasser, and without regard to whether his perilous position was the result of his voluntary act or not. Especially is this true if the homicide occurs at a place where the track had for many years been used as a footway by pedestrians in such a frequent and public way as that employés of the company must have known of the use. Under the circumstances, the omission of the engineer to make any effort to check the train will be deemed so reckless as to amount in law to wantonness.
A killing may be wanton, though not intentional in fact; for where a homicide results from gross carelessness and a reckless disregard of the rights of others, the natural consequences of the reckless act will be presumed to have been intended.
Applying the foregoing principles to the facts of the present case the verdict was warranted, and no substantial error was committed during the trial.
Error from City Court of Athens; H. S. West, Judge.
Action by Mary Pelfry against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Harris & Harris, of Macon, and Shackelford & Shackelford, of Athens for plaintiff in error.
Samuel H. Sibley, of Union Point, and E. R. Lambert and J. S. Grant, both of Madison, for defendant in error.
The plaintiff's husband was run over and killed while lying down upon the defendant's track. He had been drinking, and a short time before the homicide was seen on the defendant's trestle with a sack of flour, weighing 50 pounds, on his shoulder. At that time he was very drunk, fired his pistol promiscuously, and, when warned that a train would come along in a few minutes, remarked that he "had a gun to stop anything--he didn't care anything about the train." He walked on across the trestle about a quarter of a mile beyond, and evidently lay or fell down across the track in a drunken stupor. The sack of flour fell beside him, and between him and the train which ran over him. The train was behind time, and, when it came upon the trestle, the engineer saw a white object at a point on the track where the man was lying. He says he thought the object was a white piece of paper or something of that sort. He inquired of the fireman what it was, and the fireman replied that he did not know. Thereupon the engineer increased the speed of the train, or, to use his own language, "rawhided his engine pretty hard," in order to make up the lost time. It was a clear day, and there was nothing to obscure the engineer's vision. While the track curved slightly at the end of the trestle, the track was straight and the view unobstructed from the point of the curve to the place where the homicide occurred. After going some distance and arriving within 150 or 200 feet of where the white object was on the track, the engineer said he "looked around and discovered it was a man." In another portion of his testimony he testifies that his eyesight was good, and that he continued to look up the track after seeing the white object, and did not discover the presence of the plaintiff's husband on the track until it was too late to stop the train, after doing everything it was possible for him to do to accomplish this purpose. The place where the deceased was killed was some 700 yards from the nearest public crossing, between the stations of Whitehall and Sidney. There were woods on each side of the track for some distance, and few, if any, houses. There was some evidence that pedestrians had been accustomed to use the track to go from Whitehall across the trestle to Sidney and beyond, it being about a mile and a half by rail and some four or five miles around by the dirt road; but there was no evidence that the company's employés in charge of the train knew of this custom, though there was some evidence that there was a well-worn path between the tracks, which had been made by pedestrians. The jury found for the plaintiff $1,500, and the defendant's motion for a new trial was overruled. It excepted.
There may have been some inaccuracies in the charge, but the case really turns upon the question whether the plaintiff was entitled to recover under that view of the evidence most favorable to her contentions. It is inferable from the argument that, if a recovery was authorized, both sides are satisfied with the amount of the verdict, or at least that the plaintiff in error is not complaining. We will, therefore, not notice the special assignments of error further than to say that, under our view of the law, no such substantial error was committed as would justify us in setting aside the verdict in the plaintiff's favor.
Manifestly the deceased was a trespasser, and ordinarily a railway company owes such a one no duty except not to injure him willfully or wantonly, or, to express it somewhat differently, to use ordinary care for his safety after his presence in a perilous position has been discovered. Kendrick v. Seaboard Air Line Ry. Co., 121 Ga. 775, 49 S.E. 762; Gulf Line Ry. v. Way, 137 Ga. 109, 72 S.E. 917. Applying this rule, it has been many times held that no recovery can be had for injury to or death of one trespassing on the company's tracks, when the employés did not know and had no reason to anticipate his presence at the time when and place where he was injured or killed. In such a case the act of the trespasser is one of such gross negligence as to preclude a recovery, even though the employés in charge of the engine may likewise have been guilty of negligence in failing to keep a lookout down the track. Raden v. Georgia Railroad, 78 Ga. 47; Central R. Co. v. Smith, 78 Ga. 694, 3 S.E. 397; Id., 82 Ga. 801, 10 S.E. 111; Wilds v. Western R. Co., 82 Ga. 667, 9 S.E. 595; Parish v. W. & A. R. Co., 102 Ga. 285, 29 S.E. 715, 40 L.R.A. 364. In all of the foregoing cases the injury occurred at night. In Leach's Case, 91 Ga. 419, 17 S.E. 619, 44 Am.St.Rep. 47, recovery was denied where the trespasser was killed in the daytime on a trestle, and was not discovered in time to have stopped the train. Cases may arise, however, where the company would be under a duty to anticipate the presence of a trespasser upon the track and to take proper precautions to prevent injury to him. Ashworth v. Sou. Ry. Co., 116 Ga. 635, 43 S.E. 36, 59 L.R.A. 592.
This rule was applied by the Supreme Court against the railway company in Shaw v. Georgia Railroad, 127 Ga. 8, 55 S.E. 960, where it appeared that the tracks of the company were constantly being used longitudinally by pedestrians with the knowledge of the section foreman, at the place where the homicide occurred. In that case authorities were approvingly cited for the proposition that, This court, in Waldrep's Case, 7 Ga.App. 342, 66 S.E. 1030, recognized the soundness of the general rule just quoted, but declined to apply it in favor of one trespassing in a switchyard, because, as was said by Judge Russell, the inference of implied invitation to use tracks in a switchyard "is so inconsistent with the continuous use of its tracks for switching purposes as not to admit of the presumption that there is an invitation or permission granted by the railroad to the public." The Supreme Court likewise declined to apply the doctrine of implied invitation to use a railway trestle in favor of a bridge watchman, whose wife was killed on a trestle which she had been for some time using as a footway with the knowledge of certain subordinate employés, including the section foreman, but without knowledge on the part of the servants in charge of the train. Comer v. Hill, 101 Ga. 340, 28 S.E. 856. Without reference to whether this decision may conflict with the later ruling in the Shaw Case, the latter is controlling upon us, because the former decision was concurred in by only three Justices. In Gulf Line Ry. Co. v. Way, supra, "it did not appear from the petition whether few or many pedestrians were accustomed to walk along or near the...
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