Hill v. Louisville & N.R. Co.

• Decision Date: 13 November 1905
• Citation: 52 S.E. 651,124 Ga. 243
• Parties: HILL v. LOUISVILLE & N. R. CO. et al.
• Court: Georgia Supreme Court

52 S.E. 651

124 Ga. 243

HILL v. LOUISVILLE & N. R. CO. et al.

Supreme Court of Georgia

November 13, 1905

Syllabus by the Court.

Where it was the custom of a railway company, at a given station on its line of road, to allow persons to get into its cars for the purpose of assisting passengers boarding the same, and also customary for it to give certain signals before the starting of the train, in order that such persons might safely alight, the company was not liable for the death of one who boarded its train for such purpose, and who, in attempting voluntarily to alight from the train after it had started without the usual signals, was by a sudden jerk of the train thrown under it and killed, when neither the conductor nor any other employé of the company had notice of the purpose of the deceased in boarding the train, or of his intention or attempt to alight therefrom.

It is the duty of the trial judge to pass on the sufficiency of the facts alleged in a petition to show a cause of action in the plaintiff's favor, when this question is raised by demurrer, although the case be one wherein the plaintiff seeks to recover damages alleged to have been sustained in consequence of the negligence of the defendant.

Error from Superior Court, Columbia County; H. C. Hammond, Judge.

Action by Ida Hill, administrator, against the Louisville & Nashville Railroad Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Henry C. Roney, for plaintiff in error.

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

FISH C.J.

By reference to the petition it will be seen that the allegations of negligence, briefly stated, were: (1) That it was the custom of the defendants to allow persons to enter the cars, in order to assist passengers boarding the train and, before starting the train, to give certain signals for such persons to get off, but on this occasion none of the usual signals were given, and before Amaker, who, in assisting his sister-in-law and her children with their bundles, had entered the car, could deposit the bundles, and while he was standing in the aisle of the car, the train started off slowly, it not having stopped a reasonable length of time for him to render such assistance and leave the car in safety. (2) That upon the starting of the train he rushed out of the door, onto the platform, and down the steps of the car, to alight therefrom, and while in the act of alighting with due caution a sudden lurch or jerk of the train threw him to the ground, causing the injuries from which he died. Assuming, as we must in passing on the sufficiency of the petition to withstand the demurrer thereto, all the allegations of negligence on the part of the defendants to be true, we are clearly of opinion that no cause of action was set forth. In Simmons v. Seaboard Air Line Railway, 120 Ga. 225, 47 S.E. 570, it was held: "(1) If, with a clear chance to avoid the consequences of defendants' negligence or breach of duty, the plaintiff voluntarily assumes the risk occasioned thereby, such conduct on his part is not merely contributory negligence, lessening the amount of damages, but a failure to avoid danger, defeating the right to recover. (2) The fact that in stepping from a moving train the plaintiff may not have been guilty of negligence defeating his right to recover does not entitle him to a verdict, unless it also appears that the carrier was at the time guilty of negligence which was the proximate cause of the plaintiff's injury." As was said by Mr. Justice Lamar in rendering the opinion in that case, it is ordinarily a question for the jury to determine whether it is negligence, barring a recovery, for a passenger to step from a moving train; and a number of cases were cited wherein this court decided such conduct did not prevent a recovery, when the passenger was injured...