Moore v. Seabd. Air Line Ry. Co, (No. 14132.)

• Decision Date: 25 June 1923
• Docket Number: (No. 14132.)
• Citation: 118 S.E. 471,30 Ga.App. 466
• Parties: MOORE. v. SEABOARD AIR LINE RY. CO.
• Court: Georgia Court of Appeals

30 Ga.App. 466

118 S.E. 471

MOORE.

v.SEABOARD AIR LINE RY. CO.

(No. 14132.)

Court of Appeals of Georgia,

Division No. 2.

June 25, 1923.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED]

Error from Superior Court, Polk County; F. A. Irwin, Judge.

Action by Mrs. A. P. Moore against the Seaboard Air Line Railway Company. Judgment for defendant on demurrer, and plaintiff brings error. Affirmed.

This was an action for the death of the plaintiff's husband, alleged to have been caused by the negligence of the defendant in the operation of a train. The petition alleged, in substance, the following facts:

That on September 20, 1921, about 5:30 to 6 o'clock in the afternoon, the decedent went to a point on the defendant's line of railroad, long established and recognized by it as a flag station, at which its trains were accustomed to stop and receive passengers on signal, and that decedent, on hearing the train approaching some 400 yards distant, placed himself at the accustomed place upon the track and signaled the train to stop by waving his handkerchief and arms, continuing until the employees in charge of the train either saw, or by the exercise of ordinary diligence could have seen, the signals so given; that the railroad track upon which the train approached was practically straight for more than 400 yards, and there was nothing to prevent the signals from being observed, but that in utter disregard of the same the train was run at the high and reckless rate of speed of 50 miles per hour, to and by the station, striking and killing the decedent before he had time or opportunity to escape from the track to a place of safety. The decedent was in a public road, crossed by the defendant's track, at the time the train approached, where both the public road and the track are situated on high and narrow fills, with deep ditches on the sides. It was further alleged that it was the established custom, recognized by the defendant, for persons to stand upon the track while flagging a train in order for their signals to be heeded, and to continue waving until the operatives gave notice by ringing the bell or blowing the whistle that the signal was recognized; that the decedent intended to become a passenger upon the train that killed him, and was able and expected to pay his fare, no tickets being sold at the station, and he was thus at the station at the time under the express invitation of the defendant for that purpose; that, owing to his position immediately in...