Kelley v. Hines

• Decision Date: 13 April 1920
• Docket Number: 11243.
• Citation: 102 S.E. 921,25 Ga.App. 186
• Parties: KELLEY v. HINES, DIRECTOR GENERAL.
• Court: Georgia Court of Appeals

102 S.E. 921

25 Ga.App. 186

KELLEY v. HINES, DIRECTOR GENERAL.

No. 11243.

Court of Appeals of Georgia, First Division

April 13, 1920

Syllabus by the Court.

This suit was brought under section 2782 of the Civil Code of 1910, for the homicide of an employé of the defendant railroad. There was nothing in the original petition, or as finally amended, which showed that at the time of the homicide the deceased and the defendant carrier were engaged in interstate commerce. The statement in the answer of the defendant that they were so engaged cannot be considered by this court in passing upon the question as to whether the petition was properly dismissed on general demurrer. Accordingly, upon this question the provisions of the Employers' Liability Act of this state (Civ. Code 1910 §§ 2782-2787), and not those of the federal act (U. S. Comp St. §§ 8657-8665), are controlling.

Under section 2782 of the Civil Code of 1910, a recovery for the homicide of an employé of a railroad company cannot be had where the deceased employé brought about his death by his own carelessness amounting to a failure to exercise ordinary care, or where he, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence.

In cases of personal injuries, the plaintiff as a conscious human agent is bound to exercise ordinary care to avoid the consequences of the defendant's negligence, by remaining away, going away, or getting out of the way of a probable or known danger; and if his duty requires him to remain in the presence of danger, he must exercise the ordinary care required of a prudent man under the particular circumstances. Mansfield v. Richardson, 118 Ga. 250, 45 S.E. 269 (3).

If at the time of the injury an ordinarily prudent person, in the exercise of that degree of care and caution which such a person generally uses, would have reasonably apprehended that the defendant might be negligent at the time when and place where the injury occurred, and, so apprehending the probability of the existence of such negligence, could have taken steps to prevent the injury, then the person injured cannot recover if he failed to exercise that degree of care and caution usually exercised by an ordinarily prudent person to ascertain whether the negligence which might have been reasonably apprehended really existed. If there is anything present at the time and place of the injury which would cause an ordinarily prudent person to reasonably apprehend the probability even, if not the possibility, of danger to him in doing the act which he is...