Jenkins v. Cent. Of Ga. Ry. Co

• Decision Date: 19 February 1906
• Citation: 53 S.E. 379,124 Ga. 986
• Parties: JENKINS. v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Supreme Court

53 S.E. 379

(124 Ga. 986)

JENKINS.

v.CENTRAL OF GEORGIA RY. CO.

Supreme Court of Georgia.

Feb. 19, 1906.

Negligence—Injuby to Licensee.

Under the facts alleged in the plaintiff's petition, he entered the premises of the defendant railway company as a volunteer and mere licensee, and the injuries he received were attributable, not to an omission by the company to perform any duty which it owed to him as such, but to his own voluntary act.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 42-44.]

(Syllabus by the Court.)

Error from Superior Court, Haralson County; A. L. Bartlett, Judge.

Action by G. B. Jenkins against the Central of Georgia Railway Company. Judgment for defendant. Plaintiff brings error. Affirmed.

S. L. Craven, W. R. Hutcheson, and C. G. Janes, for plaintiff in error.

J. B. Branham and McHenry & Maddox, for defendant in error.

EVANS, J. The railway company demurred to the plaintiff's petition; he amended it, and the result produced was substantially as follows, so far as the setting forth of a cause of action is concerned: During the month of January, 1903, the defendant company operated a steam shovel within half a mile of plaintiff's home near Felton, in Haralson county, which was used for the purpose of hoisting dirt and loading the same on cars, to be transported to vari ous points along the company's railway. On or about January 12th an employs of the company came to plaintiff's house and told him that "Mr. Clint Morgan, who was conductor on the train of cars which transmitted the dirt from the steam shovel, " wanted plaintiff to come up to where the shovel was located for the purpose of giving him some information as to where the lines of certain land lots were, etc. As the company's employes in charge of the steam shovel knew, the plaintiff was familiar with the location of the land lines and the numbers of the land lots in the vicinity, and the desired information was sought by defendant's employes in order that they might not raise dirt with the shovel from lands other than those from which they had a right to take soil. In response to the message thus delivered to him, plaintiff went to the steam shovel, though the day was very cold and ice was to be found where water had stood upon the surface of the ground. When he arrived, he was informed by one Mr. Turner, one of the company's employes, that the conductor in charge of the dirt train had gone off with a train load of dirt and would be gone 30 minutes. Upon hearing this, plaintiff started down towards a fire burning on the ground near the shovel, with a view to warming himself, whereupon Turner told him to get up in the box or car which enclosed the boiler and engines, as the boiler was hot and this was a much better place to warm. He assisted plaintiff up the steps attached to the car enclosing the boiler, the steps being very small, hard to ascend, and extending from a point near the ground to the floor of the car, a distance of 5 1/2 or 6 feet from the ground. Turner told plaintiff "it would be perfectly safe for him to ascend the steps and to come down same, as he would assist him in doing so.

The reason for Mr. Turner's saying it would be perfectly safe for petitioner to ascend said steps to said box enclosing said boiler and engines, as aforesaid, was because petitioner objected to ascending said steps on account of his age and had not good use of himself, and told said Mr. Turner he was afraid he would fall and hurt himself in doing so, but said Mr. Turner assured your petitioner that he would assist him up into and down from said box, * * * and did assist your petitioner up into said box safely." Within 25 or 30 minutes thereafter, and before Morgan, the conductor, had returned, an employe remarked that Mr. C. B. Wilburn, superintendent of the Chattanooga division of the defendant's railway, was coming, Turner immediately left the scene, as did all the rest of the employes, leaving plaintiff alone in the box or car, and without offering him any assistance in getting out....