Mills v. Central of Georgia Ry. Co.

Decision Date17 June 1913
Citation78 S.E. 816,140 Ga. 181
PartiesMILLS v. CENTRAL OF GEORGIA RY. CO.
CourtGeorgia Supreme Court

Syllabus by the Court.

The court erred in sustaining the demurrer filed to the petition in this case.

(Additional Syllabus by Editorial Staff.)

A petition in an action for the death of plaintiff's 8 year old son alleged that, while intestate was walking along defendant's track at the ends of the ties in an uninclosed place where the track was customarily used for pedestrians, his brother, 15 years old, picked up a signal torpedo negligently left on the track by defendant's servants, and placing it on the rail hit it with an iron tap or nut to break it open without knowledge that it was dangerous; that it exploded, and a piece of it struck intestate, resulting in his death. Held, that the petition sufficiently charged defendant's negligence as the proximate cause of decedent's death to withstand a demurrer.

Error from Superior Court, Effingham County; W. W. Sheppard, Judge.

J. H Smith, of Eden, for plaintiff in error.

H. W Johnson, of Savannah, for defendant in error.

HILL J. (after stating the facts as above).

We think the petition made such a case as was sufficient to withstand the demurrer filed thereto. It was alleged that the torpedo which caused the death of the plaintiff's son, who was 8 years old, was placed on defendant's roadway by its servants in a wanton and careless manner prior to the homicide; that the brother of the deceased, who was 15 years old, picked up the torpedo lying in the track on which they were walking to their work, as was customary with pedestrians, and placing it on one of the iron rails hit it with an iron tap or nut for the purpose of breaking it open, never having seen one, and not knowing that it was dangerous or liable to do any harm. The younger brother was standing seven or eight feet away, and when the torpedo exploded was struck by a piece of it, which caused his death. The facts are more fully set out in the foregoing statement.

One ground of the demurrer is that the petition shows that the injury complained of was not the proximate result of the defendant's negligence. It is alleged in the petition that the death of plaintiff's son was caused by the negligence and carelessness of the defendant, their agents, and employés, by carelessly and negligently leaving or allowing a dangerous and highly explosive torpedo to be thrown down and allowed to remain on its roadbed. What is, or what is not, the proximate cause of an injury must in all cases be determined from the evidence. Central Ry. Co. v. Tribble, 112 Ga. 866, 38 S.E. 356. See, also, Smith v. Atlantic Coast Line Ry., 5 Ga.App. 219, 220, 221, 62 S.E. 1020. In the case of Harriman v. Pittsburgh, etc., Ry. Co., 45 Ohio St. 11, 12 N.E. 451, 4 Am.St.Rep. 507, it was held: "The servants of a railroad company negligently placed and left an unexploded signal torpedo at a point on the company's track, which the public, including children, had long been accustomed to use as a crossing, with the acquiescence of the company. The torpedo was picked up by a boy 9 years of age, while so using the company's track, and was carried by him into a crowd of boys near by, and, being ignorant of its dangerous character, he attempted to open it. The torpedo exploded, and the plaintiff, a boy 10 years of age, was injured by the explosion. Under this state of facts, it was held that the negligence of the company's servants was the proximate cause of the injury suffered by the plaintiff; and the fact that the torpedoes were wantonly placed on the company's track by its trainmen, when there was no necessity for using them at that time and place, did not exempt the company from liability to the plaintiff." See, also, Railway v. Shields, 47 Ohio St. 387, 24 N.E. 658, 8 L.R.A. 464, 21 Am.St.Rep. 840, and discussion of this case in 31 Cent. Law J. 169, and cases there cited; Juntti v. Oliver Iron Mining Co., 119 Minn. 518, 138 N.W. 673, 42 L.R.A. (N. S.) 840; Akin v. Bradley Engineering & Mach. Co., 48 Wash. 97, 92 P. 903, 14 L.R.A. (N. S.) 586; Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am.Rep. 154.

It was held in the case of Carter v. Columbia R. R. Co., 19 S.C. 20, 45 Am.Rep. 754, that "a railroad company is not liable in damages for the death of a man caused by the explosion of a torpedo with which he intermeddles while walking on the railroad track, and which had been placed there by the company as a danger signal to approaching trains." But it will be observed that in the Carter Case the person who picked up and caused the torpedo to explode was a "man," and not a mere boy, as in the instant case. And it definitely appeared in that case that the torpedo had been placed by the railroad company as a danger signal. Mr. Chief Justice Simpson, in delivering the opinion in that case, said: "It would, no doubt, require a much stronger case to make out negligence as to a trespasser than is required in ordinary cases, but we have found no case which goes to the extent of declaring that a trespasser has no protection. *** Suppose *** the defendant, knowing that its track was being trespassed upon by parties unauthorizedly appropriating it as a track or road to walk upon, and to break up this use had placed a dangerous explosive instrument thereon, *** with no notice or advertisement to the public of the facts, and a traveler, though technically a trespasser, had been injured thereby, could it be claimed as a legal proposition that, under such circumstances, the company would be exempt from liability? We think not."

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