Ga. R. & Banking Co v. Williams

• Decision Date: 20 December 1907
• Docket Number: (No. 545.)
• Citation: 59 S.E. 846,3 Ga.App. 272
• Parties: GEORGIA R. & BANKING CO. v. WILLIAMS.
• Court: Georgia Court of Appeals

59 S.E. 846

3 Ga.App. 272

GEORGIA R. & BANKING CO.

v.WILLIAMS.

(No. 545.)

Court of Appeals of Georgia.

Dec. 20, 1907.

1. Railroads—Injuries to Person on Track —Signals.

The failure to observe the statutory requirements as to checking the speed of trains and ringing the bell at street crossings is not negligence as to a person on the track of a railroad who is not at the crossing.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1266, 1270.]

2. Same—Pleading—Petition.

The petition, failing to set out any specific acts of negligence which would authorize a recovery, should, on proper timely demurrer, have been dismissed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1331-1336.]

(Syllabus by the Court.)

Error from City Court, Richmond County; W. F. Eve, Judge.

Action by M. A. Williams against the Georgia Railroad & Banking Company. Judgment for plaintiff, and defendant brings error. Reversed.

Jos. B. & Bryan Cumming, for plaintiff in error.

Austin Branch, for defendant in error.

RUSSELL J. The defendant in error brought an action against the Georgia Railroad & Banking Company for damages accruing to her by reason of the homicide of her husband. The defendant (now plaintiff in error) demurred to the plaintiff's petition, and excepts to the judgment overruling the demurrer. We think the court erred in overruling the demurrer. Under the allegations of the petition, the deceased husband of the plaintiff was using the defendant's right of way longitudinally at a place which was much used by the public in this way. According to the allegations of the petition, he was struck by the defendant's train as he stooped down to tie his shoe. He was in full possession of his faculties at the time he was struck. The only negligence charged against the defendant was the failure to observe the statutory requirements in reference to checking the speed of the train and tolling the bell in approaching the public crossing where Gwinnett street intersected the defendant's track. The petition alleges that the deceased was about 30 feet beyond the crossing at the time of the casualty. It is not alleged that he was intending to use the crossing, or that he was about to use or had reached the well-frequented path which crossed the defendant's track, and which it allowed the public to use. As to a person on the track, and not at the crossing, the failure to observe the requirements of section 2222 of the Code of 1895 Is not per se negligence. The railway company owes such a person no duty except the use of diligence to prevent an accident after the danger is apparent. A. & C. Air Line Ry. Co. v. Gravitt, 93 Ga. 309, 20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145; E. T. V. & G. R. Co. v. Smith, 94 Ga. 580, 20 S. E. 127; Southern Ry. Co. v. Flynt, 2 Ga. App. ——, 58 S. E. 374.

It Is not alleged that the plaintiff's husband intended to cross the track. He appears to have been walking on a path on the defendant's right of way, which ran very near the track. According to the allegations of the petition, he stooped down to tie his shoe, and was struck by the train. It necessarily follows that he must have had his head extended over some portion of the track, and apparently he exercised no diligence in his own behalf to avoid the injury which overtook him. Under the holding in Central R. Co. v. Raiford, 82 Ga. 405, 9 S. E. 169, the obligation of a railroad company towards one using a path running along the track on the right of way is no greater than that of one using any other portion of the right of way. While it seems to be anomalous that a plaintiff can recover by showing the injury, if the presumption of negligence arising against the railroad company is not rebutted, without proving the specific allegations of negligence contained in his petition, still specific acts of negligence upon which he expects to recover must be alleged. As held by the Supreme Court in South. Ga. Ry. Co. v. Ryals, 123 Ga. 330, 51 S. E. 428, the presumption of negligence which arises under section 2321 of the Civil Code of 1895 is only a rule of evidence, and does not dispense with the proper pleading of necessary facts. And while a plaintiff may recover, so far as the evidence is concerned, on the presumption of negligence, he can only recover on the specific acts of negligence alleged as the cause of his injury. Augusta Ry....