Moore v. Seaboard Air Line Ry. Co.

• Decision Date: 25 June 1923
• Docket Number: 14132.
• Citation: 118 S.E. 471,30 Ga.App. 466
• Parties: MOORE v. SEABOARD AIR LINE RY. CO.
• Court: Georgia Court of Appeals

118 S.E. 471

30 Ga.App. 466

MOORE v. SEABOARD AIR LINE RY. CO.

No. 14132.

Court of Appeals of Georgia, Second Division

June 25, 1923

Syllabus by the Court.

It is an elementary rule of construction, as applied to a pleading that it is to be construed most strongly against the pleader and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference on demurrer will prevail in determining the rights of the parties. Krueger v. MacDougald, 148 Ga. 429 (1), 96 S.E. 867.

There being no allegation to the contrary, it must be assumed that the decedent was a person of ordinary intelligence and that he was laboring under no physical defect or disability which rendered him incapable of appreciating his situation and of knowing the dangers incident thereto. Thomas v. Georgia Granite Co., 140 Ga. 459 (1), 460, 79 S.E. 130.

If when the defendant's negligence was discovered or when in the exercise of ordinary care, it could have been discovered, the use by the decedent of his senses of sight and of hearing in an ordinarily diligent way could have prevented the casualty from occurring, the plaintiff cannot recover. Georgia Railroad & Banking Co. v. Williams, 3 Ga.App. 272, 274, 59 S.E. 846.

It is an established rule of pleading that conclusions in conflict with the pleaded facts are to be disregarded (Flynt v. Southern Railway Co., 7 Ga.App. 313 [1], 316, 66 S.E. 957), and general allegations that a person could not have avoided the consequences of another's negligence by the exercise of ordinary care after it was or should have been discovered must yield, on demurrer, to the particular facts shown where inferences from the facts are necessarily to be drawn contradictory of the conclusions (Wood v. Pynetree Paper Co., 29 Ga.App. 81, 114 S.E. 83 [4]).

The failure of the engineer to give the signals required by the statute when approaching a public crossing will not impose liability upon a railroad company to a person upon or near the railroad track who is fully aware of the approach of the train. In such a case failure to give the statutory warning of the approach of the train cannot be regarded as the proximate cause of an injury sustained by a person having knowledge of the approach of the train. Central Railroad v. Brinson, 70 Ga. 209; Central of Ga. Ry. Co. v. McKey, 13 Ga.App. 477 (3), 79 S.E. 378.

Every case of this character must stand largely upon its own facts, and questions of negligence are questions of fact, and therefore come within the peculiar province of the jury; but nevertheless, where facts are considered on demurrer, and any rational interpretation thereof requires the conclusion, as a matter of law, that there was a want of ordinary care on the part of the plaintiff, or, as here, the plaintiff's deceased husband, the demurrer should be sustained and the case ended, without requiring the defendant to resist a possible recovery not authorized under the facts as alleged. Southern Railway Co. v. Young, 20 Ga.App. 362, 367, 93 S.E. 51; Hill v. Louisville & Nashville R. Co., 124 Ga. 243 (2), 52 S.E. 651, 3 L.R.A. (N. S.) 432.

If it be true that a person standing near to a swiftly moving train is likely to be drawn in to the train by suction, the decedent should have taken notice of the possibility of the occurrence, with whatever notice he had of the speed of the train, as it would be the result of the operation of a primary physical law which would be consequently a matter of common knowledge. Southern Railway Co. v. Young, supra, 20 Ga.App. p. 372, 93 S.E. 51; Rome Ry. & Light Co. v. Keel, 3 Ga.App. 769 (2 a), 60 S.E. 468. The decedent is likewise presumed to have known, when he went upon the track, of the alleged difficulty in estimating the speed of the train from a position immediately in front of it.

If the negligence of the defendant was existing at the time that the decedent was killed, and he, in the exercise of that degree of care and caution which an ordinarily prudent person would exercise under similar circumstances, could have discovered the defendant's negligence, and, when discovered, could, by the exercise of a like degree of care, have avoided the same, the plaintiff cannot recover. Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (1), 712, 39 S.E. 306, 54 L.R.A. 802.

"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 [or, as here, his widow] 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 about to perform, then he must take such steps as an ordinarily prudent person would take to ascertain whether such danger exists, as well as to avoid the consequences of the same after its existence is ascertained; and if he fails to do this, and is injured, he will not be allowed to recover, if by taking proper precautions he could have avoided the consequences of the negligence of the person inflicting the injury. A railroad track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track." Kelley v. Hines, 25 Ga.App. 186 (4), 102 S.E. 921; Western & Atlantic R. Co. v. Ferguson, supra.

The decedent, as a conscious human agent, was "bound to exercise ordinary care to avoid the consequences of the defendant's...