Georgia Southern & F. Ry. Co. v. Thomas

• Decision Date: 27 July 1916
• Docket Number: 7208.
• Citation: 90 S.E. 80,18 Ga.App. 511
• Parties: GEORGIA SOUTHERN & F. RY. CO. v. THOMAS.
• Court: Georgia Court of Appeals

90 S.E. 80

18 Ga.App. 511

GEORGIA SOUTHERN & F. RY. CO. v. THOMAS.

No. 7208.

Court of Appeals of Georgia

July 27, 1916

Rehearing Denied Sept. 15, 1916.

Syllabus by the Court.

A brakeman upon either a passenger or a freight train has the implied power to remove trespassers therefrom. Dixon v Northern Pacific R. Co., 37 Wash. 310, 79 P. 943, 68 L.R.A. 895, 107 Am.St.Rep. 810, 2 Ann.Cas. 620.

A railroad company owes a duty to a trespasser upon its trains not to injure him willfully or wantonly. Charleston & Western Carolina Ry. Co. v. Johnson, 1 Ga.App. 441, 57 S.E. 1064; Forrest v. Georgia R. & Bg. Co., 128 Ga 77, 57 S.E. 98.

Where a brakeman of a railroad company, who is on duty at the time discovers a trespasser on a rapidly moving freight train of the company, and, in ejecting him therefrom, willfully and wantonly assaults him by shooting him with a pistol and forcing him to jump or fall from the train while it is in rapid motion, the company is liable in damages for injuries so caused to the trespasser. Charleston & W. C. Ry. Co. v Johnson, supra; Smith v. S., F. & W. Ry. Co., 100 Ga. 96, 27 S.E. 725; Brunswick & Western R. Co. v Bostwick, 100 Ga. 96, 27 S.E. 725; S., F. & W. Ry. Co. v. Godkin, 104 Ga. 655, 30 S.E. 378, 69 Am.St.Rep. 187; Lindsay v. Central R. & Bkg. Co., 46 Ga. 447; Primus v. Macon Ry. & Light Co., 126 Ga. 667, 55 S.E. 924; Forrest v. Georgia R. Co., supra; Central of Georgia Ry. Co. v. Harden, 18 Ga.App. 392, 89 S.E. 432; Dixon v. Northern Pac. R. Co., supra; Cook v. Southern Ry. Co., 128 N.C. 333, 38 S.E. 925; Marion v. C., R.I. & P. Ry., 59 Iowa 428, 13 N.W. 415, 44 Am.Rep. 687. The facts in the case of Savannah Ry. Co. v. Wall, 96 Ga. 328, 23 S.E. 197, clearly distinguish it from this case.

The petition set forth a cause of action, and the court did not err in overruling a general demurrer.

The first and second grounds of the amendment to the motion for a new trial amount, in law, merely to an amplification of the general ground that the verdict is contrary to law.

When considered in the light of the entire charge, no material error appears in the excerpts therefrom, as complained of in the third, fourth, fifth, sixth, and seventh grounds of the amendment to the motion for a new trial.

It was not error to exclude the testimony excepted to as set forth in the eighth, ninth, and tenth grounds of the amendment to the motion for a new trial.

The verdict (for $3,500) does not appear to be excessive. There was evidence to support it, and the court did not err in overruling the motion for a new trial.

Error from...