Louisville & N. R. Co v. Arp

• Decision Date: 22 June 1911
• Citation: 136 Ga. 489,71 S.E. 867
• Court: Georgia Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. ARP.

136 Ga. 489

71 S.E. 867

LOUISVILLE & N. R. CO.

v.ARP.

Supreme Court of Georgia.

June 22, 1911.

(Syllabus by the Court.)

1. Railroads (§ 344^*)—Crossing Accident-Complaint—Construction.

In an action against a railroad company for an injury alleged to have been negligently inflicted upon a child of four years while on the railroad track at a place intersected by a private crossing maintained by the defendant, an allegation that the servants of the railroad company in charge of the train which inflicted the injury saw, or in the exercise of ordinary diligence could have seen, the child in time to nave stopped the train and averted collision with the child by the use of proper care, is to be construed, not as charging a wanton act in deliberately running down the child, but as a negligent act in omitting proper precaution to avert striking the child in case such servants saw, or in the exercise of ordinary care could have seen, the child.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1107-3112; Dec. Dig. § 344.*]

2. Railroads (§ 350*)—Crossing Accident-Probability of Persons on Crossing— Question for Jury.

Where a private way crosses the track of a railroad company, and the crossing is maintained by the company, and such private way for more than 10 years has been in the constant and uninterrupted use by the people of the neighborhood, it is a question for the jury to say whether in the exercise of ordinary care the servants in charge of the train should anticipate that persons may be on the track at this point and take such precautions to prevent injury to such persons as would meet the requirement of ordinary care and diligence. Applying this rule to the petition, a cause of action was set out.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1153; Dec. Dig. § 350.*]

3. Trial (§ 193*) — Railroads (§ 351*) — Crossing Accident—Instructions—Opinion of Judge as to Facts.

The charge excepted to was erroneous as an expression of opinion that certain facts constituted negligence and authorized a recovery by the plaintiff.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 436-438; Dec. Dig. § 193;* Railroads, Cent. Dig. §§ 1193-1215; Dec. Dig. § 351.*]

(Additional Syllabus by Editorial Staff.)

4. Negligence (§ 85*)—Contributory Negligence—Young Children.

A child of four years old cannot be held to be guilty of contributory negligence.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 121-129; Dec. Dig. § 85.*] Error from Superior Court, Fannin County; N. A. Morris, Judge.

Action by Tasker Arp, by next friend, against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

D. W. Blair and Wm. Butt, for plaintiff in error.

Gober & Griffin, for defendant in error.

EVANS, P. J. This was a suit by Tasker Arp, by his next friend, against the Louisville & Nashville Railroad Company, to recover damages for a personal injury. In the petition it was alleged that a private way from a public road, which passed by the house of petitioner's father, intersected the track of the defendant company; that this private way had been in constant and uninterrupted use by the people in the neighborhood as a private road for more than 10 years; that it had been so recognized by the railroad company, which maintained the crossing at the point of intersection; that there was an unobstructed view of the crossing for more than half a mile up the track; that on August 8, 1907, the petitioner, a child of near four years of age, in attempting to cross the railroad track while proceeding upon this private way, was struck by a passenger train and seriously injured. It was alleged: That the agents in charge of the train had an unobstructed view of petitioner for half a mile, and either saw or in the exercise of ordinary care could have seen him, yet evinced "reckless disregard for the safety of your petitioner by wantonly, willfully, and negligently failing and refusing to give an alarm and check the train, although they saw or could have seen your petitioner in ample time by the exercise of ordinary care and diligence to have avoided the collision with your petitioner and the injury to him as aforesaid, by reversing their engine, using the air brake, and by stopping the train before it reached your petitioner." That it was the duty of the agents of the defendant to have kept a lookout and to have anticipated the presence of persons on the crossing, which they did not do. The character of the injuries were specifically described. The defendant demurred both generally and specially. The demurrers were overruled,...