Central of Georgia Ry. Co. v. Moore

• Decision Date: 09 February 1909
• Docket Number: 1,423.
• Parties: CENTRAL OF GEORGIA RY. CO. v. MOORE.
• Court: Georgia Court of Appeals

63 S.E. 642

5 Ga.App. 562

CENTRAL OF GEORGIA RY. CO. v. MOORE.

No. 1,423.

Court of Appeals of Georgia

February 9, 1909

Syllabus by the Court.

The petition is construed as presenting an action based, not on negligence, but on willful and wanton acts of the defendant's engineer.

[Ed Note.-For other cases, see Railroads, Dec. Dig. § 394 ^[*]]

Contributory negligence is not a defense to an action based solely on willful and wanton act of the defendant by which he has recklessly or intentionally injured the plaintiff.

[Ed Note.-For other cases, see Negligence, Cent. Dig. § 85; Dec Dig. § 100. ^[*] ]

The fact that one suing for a diminution of his earning capacity through an injury occasioned by the defendant was previously to the time he was injured a tramp is material, not only on the question of his credibility as a witness, but also in measuring his damages.

[Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 344; ^[*] Damages, Dec. Dig. § 100. ^[*]]

The case turns solely upon the question as to whether the plaintiff's injuries were inflicted by the defendant's agents willfully and wantonly, and this issue should be presented to the jury unconfused with other issues.

[Ed. Note.-For other cases, see Railroads, Dec. Dig. § 388. ^[*]]

Error fro City Court of Albany; D. F. Crosland, Judge.

Action by W. H. Moore, alias W. H. Strawhand, against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Cruger Westbrook and Wooten & Hofmayer, for plaintiff in error.

J. C. Smith, W. R. Smith, R. A. Hendricks, J. H. Hall, and Hendricks, Smith & Christian, for defendant in error.

POWELL J.

Moore, alias Strawhand, recovered a verdict against the railway company in a suit for personal injuries, and to the overruling of a motion for a new trial the latter excepts. The trial was lengthy, and the record is voluminous. Indeed, we find that a great deal of surplusage has been lugged in. The plaintiff's action was brought, not on account of the defendant's negligence, but because the defendant inflicted a willful and wanton injury upon him. The petition clearly discloses this: It alleges that the plaintiff was en route from Jacksonville, Fla., to Macon, Ga.; that at Albany he stopped over for a few days; that he met a party of friends, and took a few drinks of whisky; that he decided to take a walk out westward from Albany along the tracks of the defendant company; that, when he was about two miles out of the city, he felt weak, being at the time ill with chills and fever, and, having taken a few drinks and suddenly becoming faint, sat down on the end of one of the cross-ties, and while sitting thus lost consciousness, and while he was in this condition a passenger train came along hit and severely injured him. It is alleged that approaching this point the track is straight for 25 miles. The particular wrongful act by which the defendant is charged with liability is alleged as follows: "Notwithstanding the brightness of the day, and that there were no obstructions whatever upon the track of the defendant, and that it was straight and the train was going upgrade, and the engineer of the defendant company saw the plaintiff at ample distance to have checked and stopped the same perfectly still many hundred yards before he reached defendant, and seeing that your petitioner by reason of his condition as above set forth was off his guard, and not conscious of the approaching danger, that he willfully and wantonly allowed the engine to run at the high speed of 60 miles per hour until within a few feet of your petitioner, when he gave one blast of the whistle, but did not reverse his engine, or check his speed, notwithstanding your petitioner did not hear the blast of the whistle, and when it was blown remained in a perfectly motionless condition, and in the condition and position above described and set forth the said engineer permitted his train, without any efforts on his part, to collide with your petitioner with such force as to whirl him 30 feet from the place where he was sitting, and inflict upon him the injuries hereinafter set forth."

Nowhere in the petition is mere negligence charged. Throughout the whole of it the defendant's acts are characterized as "willful and wanton." While a petition will be construed by the particular acts alleged, and not by the characterization put upon them by the pleader (see Seaboard Air Line Railway v. Shigg, 117 Ga. 454, 43 S.E. 706), it is nevertheless perfectly patent from an examination of the whole petition in the present case that the action is based not on negligence of the defendant, but solely on its willful and wanton conduct alleged in the language quoted above. It is true that by an amendment to the petition the plaintiff set out that the public, with the knowledge of the defendant, were accustomed to walk along the tracks of the company at the point where the injury occurred, and that there was a much-used private crossing near by, but no negligence growing out of these facts is set up. These things might have been material if the contention had been that the defendant's agents ought to have anticipated the presence of the plaintiff, but the allegation is direct and unequivocal that the engineer in charge of the train did, in fact, see the plaintiff sitting on the cross-tie. Under the evidence, the question whether it was a willful and wanton injury was equally sole and dominant. The engineer admitted seeing the man on the cross-tie in plenty of time to have stopped the train if he had not expected him to get off voluntarily? The plaintiff's own statements as to his intoxication are so equivocal as to amount practically to an admission of the fact, and all the circumstances demand a finding that he was guilty of contributory negligence. In fine, under neither the pleadings nor the evidence should the plaintiff have recovered unless a willful and wanton injury appeared. Hence all the pleadings and all the evidence which bore only upon the question as to whether the defendant's agents ought to have anticipated the plaintiff's presence were surplusage and immaterial to the issue.

2. Complaint is made that the court charged the jury that, if the plaintiff was injured by "willful and wanton negligence" of the defendant (we disapprove the use of the expression, for willfulness...