Norton v. Georgia Ry. & Power Co.

• Decision Date: 01 February 1922
• Docket Number: 12617.
• Citation: 110 S.E. 459,28 Ga.App. 167
• Parties: NORTON v. GEORGIA RY. & POWER CO.
• Court: Georgia Court of Appeals

110 S.E. 459

28 Ga.App. 167

NORTON v. GEORGIA RY. & POWER CO.

No. 12617.

Court of Appeals of Georgia, Second Division

February 1, 1922

Syllabus by the Court.

"Questions as to diligence and negligence, including contributory negligence, being questions peculiarly for the jury, the court will decline to solve them on demurrer, except in plain and indisputable cases." Larkin v. Andrews, 27 Ga.App. 685, 109 S.E. 518; Western Union Telegraph Co. v Spencer, 24 Ga.App. 471, 101 S.E. 198.

In Battle v. Georgia Railway & Electric Co., 120 Ga. 992 48 S.E. 337, it was held that "in an action against a street railway company, for damages alleged to have been sustained in consequence of the failure of one of its cars to stop at a given station on its line, in response to a signal to do so by a person there intending to board the car as a passenger, it should appear, from the petition, that it was the duty of the company to stop the particular car in question at that station for the purpose of taking on such person as a passenger." It is unnecessary to decide however, whether or not the rule just stated would have complete application in a case where, as here, the gravamen of the charge does not consist, as it did in the Battle Case in the failure to stop the car for the purpose of permitting the plaintiff to board it as a passenger, resulting in injury from his inability then and there so to do, but where the negligence complained of is the alleged failure of the defendant to exercise due diligence to avoid injuring the plaintiff as she was attempting in the usual and proper method to stop and board the car as a passenger; this for the reason that, as against general demurrer, the allegations of the petition, when taken as a whole, sufficiently charge the custom and duty of the company to stop the particular car in question for passengers at the alleged regular stopping place where the injury occurred. The allegation that, as the car approached such regular stopping place, the plaintiff and other prospective passengers stepped from the sidewalk in plain view of the motorman, and stood in the street at the regular place for boarding, is sufficient, as against general demurrer, to charge the defendant with notice of the plaintiff's purpose to board the car.

The general rule as applied by foreign jurisdictions, which seems to be just and reasonable, is that a motorman on a street car may rightfully assume that an adult, apparently in full possession of health and faculties, seen standing in the street near a curve in the track, but not near enough to be struck by the forward end of the car, will draw back far enough to avoid being struck by the overhang of the car as it rounds the curve; and that his failure so...