Kennemer v. Western & A. R. R

• Decision Date: 07 October 1930
• Docket Number: No. 20511.,20511.
• Citation: 42 Ga.App. 266,155 S.E. 771
• Parties: KENNEMER. v. WESTERN & A. R. R.
• Court: Georgia Court of Appeals

42 Ga.App. 266

155 S.E. 771

KENNEMER.

v.WESTERN & A. R. R.

No. 20511.

Court of Appeals of Georgia,

Division No. 1.

Oct. 7, 1930.

Rehearing Denied Nov. 11, 1930.

Syllabus by Editorial Staff.

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Action by Effie Kennemer against the Western & Atlantic Railroad. Judgment for defendant, and plaintiff brings error.

Affirmed.

Wm. E. Mann and W. Gordon Mann, both of Dalton, for plaintiff in error.

Walton Whitwell, of Nashville, Tenn., and Mitchell & Mitchell, of Dalton, for defendant in error.

Syllabus Opinion by the Court.

BROYLES, c. J.

1. "The decedent being at the time of the homicide an adult possessed of normal mental and physical faculties, though he was prevented by noises in the vicinity from hearing the train which approached him from the rear, could and should have exercised the faculty of sight, by which he would have ascertained upon merely turning his head that the train was approaching. He knew that he was in a place of danger when walking longitudinally along the track, and knew that there were noises there which interfered with his hearing, and consequently the slightest degree of care upon his part would have required him to look in the direction from which the danger might come, and a failure to exercise this care was such gross neglect upon the part of the decedent as to bar a recovery for his death." Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (5), 127 S. E. 274, 275; Id., 33 Ga. App. 631, 127 S. E. 812. See, also, Central Georgia Ry. Co. v. Tapley, 145 Ga. 792 (5, 6), 89 S. E. 841; Leverett v. Louisville & N. R. Co., 38 Ga. App. 155, 142 S. E. 905. The cases of Sou. Ry. Co. v. Brock, 132 Ga. 858, 64 S. E. 1083; Seaboard Air-Line Ry. Co. v. Par-riett, 33 Ga. App. 576, 127 S. E. 815, and the others cited by counsel for the plaintiff in error, are distinguished by their particular facts from the instant case and the cases cited in support of the present ruling. The ruling in the Pulford Case is controlling in the instant case, as there is no essential distinction between the facts of the two cases. It is true that in the instant case an amendment to the declaration alleged that the decedent "was very hard of hearing and was not a person of ordinary mental and physical capacity in that be was dull and suffering from catarrh of the head and was very peculiar and eccentric, so much so that his companions and associates were constantly guying him, and called him Slim' and other nicknames and [were] constantly hollowing at him, and that this was additional reasons why he did not and could not have heard the approaching train and engine from his rear." The allegations of this amendment should be construed in the light of the following allegations of the original petition: "Petitioner further shows that her said husband, at the time of said homicide by defendant, was an able bodied man earning and capable of earning the sum of $20 per week as an employee of the Crown Cotton Mills; that he was thirty-two years of age and had a reasonable expectancy of 33.03...