Georgia Ry. & Power Co. v. Simms

• Decision Date: 28 February 1925
• Docket Number: 15562.
• Citation: 126 S.E. 850,33 Ga.App. 535
• Parties: GEORGIA RY. & POWER CO. v. SIMMS.
• Court: Georgia Court of Appeals

126 S.E. 850

33 Ga.App. 535

GEORGIA RY. & POWER CO. v. SIMMS.

No. 15562.

Court of Appeals of Georgia, Second Division

February 28, 1925

Syllabus by the Court.

Where two street cars are at the terminus of the line, in a public street, standing tandem with a space between them of about seven or eight feet, a person who goes between them does not thereby become either a trespasser or a volunteer, since he is in a public street where he has a right to be. Going between the cars may, however, under the circumstances amount to negligence. If he, without authority, after placing himself between the cars, intermeddles with the mechanism of one of them by adjusting its trolley and thereby preparing the car for a return trip, he does not by so intermeddling or by going between the cars solely for that purpose, deprive himself of the status of one lawfully between the cars. If he thereby becomes a volunteer, he is a volunteer only as to the act of adjusting the trolley.

A volunteer is deprived of a right to recover for any injury received while he is occupying the status of a volunteer only because the fact of his being a volunteer is a contributory cause of the injury without which the injury would not have occurred. Where, in such a case as that stated above in paragraph 1, the person, acting as a volunteer in adjusting the trolley of one of the cars, is injured by the other car rolling down the track and coming upon him and crushing him between the cars, he is not debarred from a recovery against the street car company owning and operating the cars, where the injury is proximately caused by the negligence of the company in permitting the car to roll down upon him, and where his voluntary act in adjusting the trolley is in no wise a proximately contributing cause of the injury. Davis v. Savannah Lumber Co., 11 Ga.App 610, 75 S.E. 986.

Although the agents of the street car company, in charge of the car upon which the injured person was adjusting the trolley, may have had no authority to permit him to adjust it, and although evidence of such permission by any of the motormen or conductors operating cars which turned back at this point may be irrelevant, as tending to destroy the injured person's character as a volunteer in this respect nevertheless, evidence that the injured person and others, who frequently boarded street cars at this point, had, for some time immediately prior thereto, been accustomed, with the consent and knowledge of the motormen and conductors of the street cars, to run out and assist such employees in adjusting the trolleys and preparing the cars to make return trips, is, in a suit by the injured person against the street car company to recover for such injuries, relevant as tending to establish a duty upon the part of the street car company, through its agents operating the cars, to anticipate the dangerous situation of the plaintiff, and also as tending to show negligence on its part under all the circumstances. Ashworth v. Southern Ry. Co., 116 Ga. 635, 43 S.E. 36, 59 L.R.A. 592; Mandeville Mills v. Dale, 2 Ga.App. 607, 58 S.E. 1060.

There being evidence that the plaintiff had worked prior to the injury and received certain compensation therefor, and therefore evidence as to his earning capacity, the admission in evidence of the annuity tables, and the charge of the court thereon were not error, upon the ground that the plaintiff was a youth at school and had not adopted a trade or profession.

A charge to the jury as to a contention not supported by the evidence is not necessarily error. It was not error to...