Nashville, C. & St. L. Ry. Co. v. Priest

• Decision Date: 26 June 1903
• Citation: 45 S.E. 35,117 Ga. 767
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. PRIEST.
• Court: Georgia Supreme Court

45 S.E. 35

117 Ga. 767

NASHVILLE, C. & ST. L. RY. CO. v. PRIEST.

Supreme Court of Georgia

June 26, 1903

Syllabus by the Court.

1. The plaintiff being a trespasser upon the premises of the defendant railway company, it owed her no duty of protection until her presence was actually discovered by its servants notwithstanding she was a child of tender years; and it not affirmatively appearing from the allegations of her petition that, after she was seen by one of the defendant's employés, the conduct of any of them was so grossly negligent as to indicate a willful and wanton disregard for her safety the company's general demurrer should have been sustained.

Error from Superior Court, Floyd County; W. M. Henry, Judge.

Action by Mary Priest, by her next friend, against the Nashville Chattanooga & St. Louis Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

Payne & Tye, W. J. Neel, and Paul H. Doyal, for plaintiff in error.

McHenry & Maddox, Fouché & Fouché, and Moses Wright, for defendant in error.

SIMMONS C.J.

The question presented for decision in this case is whether or not the trial court erred in overruling a demurrer to the plaintiff's petition. The suit was instituted in her name by W. D. Priest, as her next friend, and was predicated upon the following allegations of fact: The defendant railway company has a passenger and freight depot in the city of Rome, Ga., which "is surrounded by platforms, yards, and railroad tracks, upon which tracks cars and engines are run and operated, and in, upon, and across which passengers and the public generally are accustomed and allowed to pass." On the 25th of February, 1902, the plaintiff, who was then 12 years of age, went with her brother, who was a year older, to the company's depot. On one of the adjacent tracks were standing two or three freight cars. "Being young and indiscreet children, and being unconscious of any danger, by reason of their tender years, and no engine or cars being then in sight or hearing, they climbed upon said cars and there remained, in full view of all passers-by, and in sight of the operatives, servants, and agents of the defendant, had they been in the exercise of any care or diligence. After petitioner and her brother had been upon said cars for some time, petitioner's attention was suddenly arrested by an engine which had approached near to said cars from the south; and as said engine continued to approach the car upon which petitioner was standing one of the servants or agents of defendant called loudly to petitioner, 'Get down off of that car, or you will be killed.' Petitioner became very much alarmed and excited by reason of the approaching engine and the harsh, loud order to get off said car as aforesaid; and believing that she was in very great danger and peril, to save herself from the danger apprehended by a collision between the car upon which she was standing and the approaching engine, she jumped from said car to the ground," a distance of about 12 feet, and broke one of the bones in her left leg, near the ankle. The plaintiff's position on the car was in full view of "those in charge of said engine and those on the ground, and she could have been readily seen or observed in the exercise of any care whatever on their part, but *** no signal was given of the approach of said engine to said car, and no effort on the part of those in charge of said engine was made to stop the same, and no notice or care was taken of her, save the rough and hasty command" above mentioned. The company's demurrer was based on the general ground that no cause of action was set forth in the plaintiff's petition, and upon the further ground that the allegations thereof did not disclose the names of the company's servants who were charged with negligence, or in any way identify them by stating what connection they had with the defendant's business, or what particular positions they occupied, etc. The plaintiff undertook to meet the special objections just indicated by offering an amendment to her petition, in which she stated that the names of these employés of the company were unknown to her, and that she was, for lack of information, unable to allege what positions they occupied, or what particular duties they owed the defendant.

Doubtless the plaintiff's petition was sufficiently full and explicit, as thus amended, respecting the identity of the employés of whose conduct she complained. See Woodson v Johnston, 109 Ga. 454, 34 S.E. 587. The general ground of the demurrer should, however, have been sustained. On the argument before this court, counsel for the defendant in error very properly conceded that she was a trespasser upon the premises of the defendant company. Though a child only 12 years of age may oftentimes occupy a much better position than would an adult under similar circumstances, in that a plea of tender years can be made to a charge of contributory negligence on the part of a child, yet it remains true that a trespasser, be h...