Rome Ry. & Light Co v. Keel
| Decision Date | 24 February 1908 |
| Docket Number | (No. 947.) |
| Citation | 60 S.E. 468,3 Ga.App. 769 |
| Parties | ROME RY. & LIGHT CO. v. KEEL. |
| Court | Georgia Court of Appeals |
To attempt to mount a slowly moving street car is not necessarily negligent.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, J 1369.]
An allegation in pleading which contradicts anything of which the court must take judicial cognizance is absolutely nugatory, and will be disregarded.
(a) The courts are required to take notice of primary physical laws.
(b) Fairly construed, the petition in this case
asserts a physical impossibility, and is therefore demurrable.
S. Demurrer—Special.
The special demurrers are not meritorious.
(Syllabus by the Court.)
Error from City Court of Floyd County; Harper Hamilton, Judge.
Action by Henry Keel, by next friend, against the Rome Railway & Light Company. Judgment for plaintiff, and defendant brings error. Reversed.
Keel sued the Rome Railway & Light Company, alleging in bis petition: The defendant is a street railway company. Plaintiff was at one of defendant's stations preparing to board a car as a passenger. As the car approached, he signaled the motorman to stop, and the motorman saw the signal and wound up the brakes, but failed to get the car to a complete stand at the station, and went past it As the car passed, plaintiff boarded the step of the front platform safely. The motor-man saw him. As plaintiff was stepping from the step of the car to the platform the motorman threw off the brakes. The car jumped forward, and jerked, knocked, and threw the plaintiff off the car. He was thrown under the wheels, and certain enumerated injuries ensued, to the damage of the plaintiff. The plaintiff was 17 years old, was an apprentice moulder, earning $3 per day, and by the time he reached 21 years of age would have been earning $6 per day had the injury not occurred. It is alleged that the defendant was negligent, in that the motorman threw the brakes off said car, and caused and allowed it to jump forward and throw petitioner off. The defendant demurred on the grounds: No cause of action is alleged. The proximate cause of the injury was plaintiff's negligence in attempting to board the front platform of a moving car. The allegations of negligence are too vague and indefinite; also, specially that it is not alleged how far the car was from plaintiff when he signaled it; also, that it is not alleged that the loosening of the brakes was done in an unusual or negligent manner. Nor is it alleged that the jump forward and jerk of the car was in any way unusual or out of the ordinary way of the movement of cars; that the allegation that the plaintiff was without fault states a mere conclusion of the pleader; also, to the allegation that by the time he reached 21 years of age he would have been earning $6 per day, because it is speculative and indefinite. This demurrer was overruled, and the defendant excepts.
Dean & Dean, for plaintiff in error.
Seaborn & Barry Wright, for defendant in error.
POWELL, J. (after stating the facts as above). 1. To attempt to mount a slowly moving street car is not necessarily negligent If while the passenger is getting upon the car the motorman, by producing an unusual and unnecessary Jerk, throws him off, a lia bility against the company may be predicated thereon. Also a sudden acceleration of the speed while the passenger is in the act of getting aboard may be negligent White v. Atlanta Consolidated Street Ry. Co., 92 Ga. 494, 17 S. E. 672; Gainesville Ry. Co. v. Jackson, 1 Ga. App. 632, 57 S. E. 1007. In Ricks v. Georgia Southern & Fla. Ry. Co., 118 Ga. 259, 45 S. E. 268, a recovery was denied because the sudden acceleration of the train had begun and was already dangerous when the plaintiff tried to catch a car rail, which he missed. In the transaction now before us, if safe entrance into the car was reasonably practicable at the time the plaintiff attempted to mount, and the motorman negligently did something to render it dangerous, a liability might be predicated; but, if the attempt was fraught with danger ab initio, and the motor-man did nothing to increase the danger, the plaintiff should not recover, though he succeeded in accomplishing a part of what was attempted without actually encountering injury.
2. The defendant's liability to the plaintiff, however, rests solely on the allegation that the releasing of the brakes was negligence; and this act, which is a casual and ordinary act in the operation of cars and which is not in the particular instance averred to have been unusual or unnecessary, depends for its sufficiency for that purpose upon the effect alleged, that it caused the car to jump forward, and to jerk petitioner off. This must be viewed in the light of the other allegations of the petition. It is stated that the car was approaching a usual stopping place, and that the motorman was in the act of bringing it to a stop, and that he had the brakes on. The petition does not allege whether the electric current was off or on, but, especially in the absence of a direct allegation on this point, it is proper for us to assume that the current was off; this being the usual condition of a car when a stop is about to be made or when the brakes are applied. There is no allegation that concurrently with the...
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... ... allegations contradictory thereof will be treated as such ... Rome Ry. & Light Co. v. Keel, 60 S.E. 468, 3 Ga.App ... 769; Edenfield v. Bank of Millen, 63 S.E ... ...
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