Charleston & W. C. Ry. Co v. Johnson

• Decision Date: 11 March 1907
• Docket Number: (No. 188.)
• Citation: 57 S.E. 1064,1 Ga.App. 441
• Court: Georgia Court of Appeals
• Parties: CHARLESTON & W. C. RY. CO. v. JOHNSON.

57 S.E. 1064

1 Ga.App. 441

CHARLESTON & W. C. RY. CO.

v.JOHNSON.

(No. 188.)

Court of Appeals of Georgia.

March 11, 1907.

1. Railroads—Trespassers on Cars.

The only duty owed by a railway company to a trespasser upon its property is not to injure him wantonly or willfully. A failure to exercise ordinary care to prevent injuring him, after his presence in a position of peril becomes known, is usually so much akin to willfulness or wantonness as to create liability.

[Ed. Note.—For cases in point, see Cent Dig, vol. 41, Railroads, § 880.]

2. Same—Infant Trespasser.

The fundamental duty owed to an infant trespasser of tender years is not different from that due to an adult; but, in determining whether a course of conduct may or may not be willful or wanton as against a child, due consideration must be given to the well-known indiscretions of childhood and the limited abilityof young persons to take adequate means to avoid danger and to escape peril.

3. Same—Action fob Injuries—Petition.

The petition was good as against the general demurrer; and since, as amended, it set up the cause of action with sufficient fullness and certainty to enable the defendant to understand definitely the exact nature of the transaction alleged and of the liability asserted, it was not erroneous to overrule the special demurrers.

(Syllabus by the Court.)

Error from City Court of Richmond County; Eve, Judge.

Action by one Johnson against the Charleston & Western Carolina Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

W. K. Miller, for plaintiff in error.

H. C. Roney, for defendant in error.

POWELL, J. The allegations of the petition as amended may be briefly stated as follows: The plaintiff, a negro boy 11 years of age, of average intelligence, with several companions of similar age, was standing near the track where a railroad crew were engaged in switching a freight train. The switchman told them that if they would turn the switch for him they might ride on one of the cars. They turned the switch and then got upon an oil-tank car and perched themselves along the narrow margin left between the tank and the edge of the car. After backing a considerable distance the engineer suddenly "reversed" the locomotive, producing a violent jerk and jolt of the car, whereby the plaintiff was thrown off the car and run over; his legs being thereby cut off. It is alleged that the engineer saw the boys riding on the car in the position described, and that he know that this position was one of great peril, and knew that an ordinary jerk or jolt of the car would throw them from the same, while the plaintiff, on account of his tender years, was not aware of the danger. A general demurrer and a large number of special demurrers were filed, but after the petition was finally completed by amendment the court overruled the demurrers; and the defendant excepts.

1. Railway companies and others are liable to a trespasser for willful and wanton injuries done him. They are likewise liable where the injury is inflicted by their failure to use ordinary care to prevent doing injury to such trespasser after they discover that he is in a position of peril. The elemental concept, in cases of trespassers, is of a liability only for wanton or willful injury; but the line of demarcation between willfulness or wantonness and the failure to use ordinary care to prevent injuring a person in obvious peril is so inappreciable as to become merely a distinction without a difference. To fail to exercise ordinary care to prevent injuring a person whose peril is seen and known is almost necessarily willful or wanton. Any man who is not wanton in disposition or who does not willfully intend to injure another will exercise his customary degree of care to prevent the act he may happen to be doing from injuring one whom he sees or knows to be imperiled by that act. Just so the law's model of what men ought to be—the ordinarily prudent man—unless he be actuated by wantonness, or by a willful intention to do harm on the particular occasion, will use ordinary care and diligence to prevent injuring his fellow man, when he discovers he is about to hurt him. Therefore the law, having regard to what its standard, its model—the ordinarily prudent man—would do under such circumstances, imputes willfulness or wantonness to those who know that some fellow man has been imperiled, and then fail to exercise ordinary care to prevent injuring him. Conversely, unless the circumstances are such that the failure to exercise ordinary care and diligence is at least tinged with wantonness or willfulness, there can be no recovery by the trespasser. This enunciation may not be accurate enough for application to the case of a trespasser, whose presence ought to be anticipated for any special reason, but not actually known, though we are clear that, away down at the bottom of things, the duty owed to a trespasser, throughout all the phases of varying circumstances, is fundamentally the same. If it is permissible to view the question in this light, the inharmony apparent in text-books and court decisions upon this question, frequently commented upon, and in Southern Railway Co. v. Chatman, 124 Ga. 1026, 53 S. E. 692, 6 L. R. A. (N. S.) 283, lengthily discussed, vanishes. Ordinarily the failure to discover the presence of the trespasser, under circumstances when the exercise of care would have resulted in such discovery, is not, as to him, negligence. Atlanta Ry. Co. v. Leach, 91 Ga. 420, 17 S. E. 619, 44 Am. St. Rep. 47; Georgia Pacific Ry. Co. v. Richardson, 80 Ga. 727, 7 S. E. 119; Southern R. Co. v. Chatman, 124 Ga. 1027, 53 S. E. 692 (2); Hall v. Western & Atlantic R. Co., 123 Ga. 213, 51 S. E. 311; Atlanta Ry. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145; Hambright v. Western & Atlantic R. Co., 112 Ga. 36, 37 S. E. 99; Rome R. Co. v. Tolbert, 85 Ga. 447, 11 S. E. 849. Nor is an honest mistake of judgment so, although, as against persons to whom there is due a higher duty, such mistakes may be treated as negligence. Seaboard Air Line Ry. Co. v. Shigg, 117 Ga. 457, 43 S. E. 706; Nashville Ry. Co. v. Priest, 117 Ga. 771, 45 S. E. 35. Nor is there any duty of keeping appliances and premises up to any given standard, so that injuries to trespassers may thereby be avoided the more easily. Jenkins v. Central Ry. Co., 124 Ga. 986, 53 S. E. 379; Clardy v. Southern Ry. Co., 112 Ga. 37, 37 S. E. 99; Savannah Ry. Co. v. Beavers, 113 Ga. 398, 39 a E. 82, 54 L. R. A. 314; Chattanooga R. Co. v. Wheeler, 123 Ga. 41, 50 S. E. 987; Southern Ry. Co. v. Morrison, 105 Ga. 543, 31 S. E. 5G4; Seward v. Draper, 112 Ga. 673, 37 S. E. 978; Etheredge v. Central R. Co., 122 Ga. 853, 50 S. E. 1003; Knowles v. Central Ry. Co., 118 Ga. 795, 45 S. E. 605. It usually takes the element of knowledge of the danger to which the trespasser is subjected to give to the failure to exercise care for his safety that quality of willfulness or wantonness necessary to raise liability. Underwood v. Western & Atlantic R. Co., 105...