Redding v. Callaway

• Decision Date: 08 March 1947
• Docket Number: No. 31472.,31472.
• Citation: 41 S.E.2d 804
• Parties: REDDING . v. CALLAWAY.
• Court: Georgia Court of Appeals

41 S.E.2d 804

REDDING .

v.CALLAWAY.

No. 31472.

Court of Appeals of Georgia,

Division No. 1.

March 8, 1947.

Syllabus by the Court.

1. The allegations of count 1 of the petition are not sufficient to sustain a wilful intention, on the part of the defendant, to take the life of the deceased, nor does it allege acts of recklessness or indifference to consequences so as to authorize a finding of an actual intent on the part of the defendant to kill the deceased.

2. The petition shows on its face that the deceased, by the exercise of ordinary care, could have avoided the conse quences of the defendant's negligence as alleged.

Error from Superior Court, Muscogee County; T. Hicks Fort, Judge.

Action by Arices Redding against Merrel P. Callaway, trustee of the property of the Central of Georgia Railway Company, to recover damages for the death of the plaintiff's son. To review a judgment sustaining a general demurrer and dismissing the petition, the plaintiff brings error.

Affirmed.

Arices Redding, hereinafter called the plaintiff, filed her petition against Merrel P. Callaway as trustee of the property of the Central of Georgia Railway Company, hereinafter called the defendant. The plaintiff sought the recovery of damages for the negligent homicide of her son, Eugene Care. General and special demurrers were filed to the petition. The court sustained the general demurrer and dismissed the petition. On this judgment error is assigned. The petition contained two counts.

It is alleged that at the time of the homicide the plaintiff was dependent upon and was supported by the deceased, her son. It is further alleged that the son was, at the time of his death, 25 years of age, and, so far as the petition shows, was in good health and in possession of all of his senses, and laboring under no liabilities. We quote the material paragraphs of the petition:

Paragraph 4 reads: "On or about June 21, 1945, the said Eugene Care, while proceeding to the place of his employment in the City of Columbus, in the early morning, was walking along the right of way of the Central of Georgia Railway Company, by the side of Central Street in a very populous area in the City of Columbus; and was following a pathway by the side of the track of said railroad company, which passageway had been constantly used by pedestrians, said Care and many others, for many years, such use being well known to the agents and servants of defendant, who made no objection thereto."

Paragraph 5 reads: "While he was thus walking along the pathway by the side of said railway track, and was walking in a westerly or northwesterly direction along said pathway and by said track, a freight train was proceeding in an easterly or southeasterly direction along one of the tracks of said railway, there being three tracks running parallel at said place, in an opposite direction to the one in which said Care was walking. While he was seeing and hearing and watching said approaching freight train, a passenger train being operated by the defendant's agents, the Seminole Limited, was proceeding westerly or north westerly along the railway track by which said Care was walking, was approaching him from the rear and travelling in the same direction as said Care. While seeing and hearing and watching said approaching freight train, the said Eugene Care did not see and did not hear the passenger train approaching from the rear, the noise of this train being drowned by the noise of the freight train. Said Eugene Care was giving his entire attention to said approaching freight train, with a view to walking at a safe distance from it, as he should meet and pass it."

Paragraph 6: "In this situation the servants and agents of the defendant in charge of said Seminole Limited clearly saw the perilous position of said Eugene Care on the said right of way, and saw that he was sufficiently near the track over which said Seminole Limited would pass, to be struck by said train, and clearly saw the freight train approaching from the opposite direction which was making a loud noise and attracting the attention of the said Care, and clearly saw that the said Care was not aware of the approach of the said Seminole Limited behind him, and saw all this some four hundred yards before reaching the said Eugene Care, but notwithstanding all this, said train continued on its way at the rapid and dangerous rate of speed of 45 miles an hour and the engineer and fireman on said train made no effort whatever to reduce the speed of the train, and did not give any warning by the blowing of the whistle or of the ringing of the bell, or otherwise, of the approach of said train; but drove said train full speed ahead and struck and killed said Eugene Care." Paragraph 7:

"Your petitioner avers that said defendant, his servants, agents and employees in so killing said decedent were guilty of wilful and wanton misconduct in the following particulars, to-wit:

"(a) In failing to apply the brakes and reverse the engine and stop said train after they saw the dangerous situation in which the decedent was at the time.

"(b) In failing to give any warning of any kind to said deceased of the approach of the said train from the rear when they saw that his attention was fixed on the train approaching him from the front.

"(c) In continuing to operate said train at full speed without doing anything to save the life of the said deceased or to warn him of his peril, when they saw the perilous situation in which he was, and saw that the he apparently did not realize it, and would not be able to extricate himself from it."

Paragraphs 4 and 5 of count 2 are the same as in count 1. We quote paragraphs 6 and 7 of count 2:

Paragraph 6: "The track over which the said Seminole train was approaching the said Care is straight and level and unobstructed for a mile and there was nothing to keep the engineer and fireman on said train from seeing the said Eugene Care and his dangerous situation long before they reached him but notwithstanding this, the said agents of defendant in charge of said train did not slow down and did not give any warning but continued full speed ahead and struck and killed said Eugene Care. Petitioner avers that the agents of said defendant should have anticipated the presence of pedestrians in this locality, that they should have maintained a vigilant lookout for pedestrians, and that if they had done so, as their duty required them to do, they would have seen the said Care in his perilous situation in plenty of time to have saved his life, and would have seen that the said Care was unaware of his peril on account of his attention being centered on the approaching freight train."

Paragraph 7 of count 2 reads:

"Your petitioner avers that said defendant, his servants, agents and employees, were negligent in so killing said deceased in the following particulars, to-wit:

"(a) In failing to anticipate the presence of pedestrians in this locality which was constantly used by pedestrians.

"(b) In failing to maintain a vigilant lookout for the protection of such pedestrians.

"(c) In travelling through the aforesaid locality at the reckless and dangerous speed of 45 miles an hour.

"(d) In failing to discover said deceased walking on said track in his dangerous position in time to stop said train, though said deceased was visible in ample time for this.

"(e) In failing to give to said deceased any warning that said train was approaching him from behind.

"(f) In failing to utilize the last clear chance to save the life of deceased after the perilous situation had developed and when the agents of defendant in the exercise of ordinary care should have perceived this situation, and when the deceased did not perceive it and was excusable in not perceiving it by reason of his watching said approaching freight train."

It will thus be seen that the only difference between count 1 and count 2 of the petition is that under count 1 the petition seeks a recovery for wilful and wanton negligence on the part of the agents and servants of the defendant who were in charge of and operating the train of the defendant which occasioned the death of the deceased, and the second count is based on ordinary negligence.

R. S. Wimberly, of Lumpkin, and Theo J. McGee, of Columbus, for plaintiff in error.

R. M. Arnold, of Columbus, for defendant in error.

GARDNER, Judge.

1. It will be noted that the deceased was walking northwesterly on a footpath longitudonally with an outside track of three parallel railroad tracks. It was in the daytime. He was not on a crossing nor within 50 feet of one. There was approaching him from the rear, a passenger train of the defendant which was on the track immediately parallel to the path on which the deceased was walking. Going in the opposite direction from the deceased and the passenger train, one of the parallel tracks (the petition does not say on which track), a freight train was being operated. The petition does not say how far distant in front of the deceased the freight train was. The petition does allege that the deceased was giving his entire attention to the approaching freight train with a view of walking at a safe distance from it as he would meet and pass it. While thus engaged it is alleged that the passenger train approached from the rear, struck the deceased and killed him wilfully and wantonly. It is conceded that the deceased was at the time a trespasser. Under the decisions of our court, it would appear that before one who is a trespasser can allege and recover for the wilful and wanton infliction of injury by the employees of a railroad company in charge of the operating of its trains, it must appear (1) that the employees actually saw the trespasser; (2) they must actually see him in time to prevent injury or death to him by the exercise of ordinary care; (3) that when seen by them the trespasser is in a dangerous position and the perilousness of that position must be discovered and known to the...