Rome Ry. & Light Co. v. Keel

• Decision Date: 24 February 1908
• Docket Number: 947.
• Citation: 60 S.E. 468,3 Ga.App. 769
• Parties: ROME RY. & LIGHT CO. v. KEEL.
• Court: Georgia Court of Appeals

60 S.E. 468

3 Ga.App. 769

ROME RY. & LIGHT CO. v. KEEL.

No. 947.

Court of Appeals of Georgia

February 24, 1908

Syllabus by the Court.

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, § 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.

The special demurrers are not meritorious.

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.

Dean & Dean, for plaintiff in error.

Seaborn & Barry Wright, for defendant in error.

POWELL J.

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 liability 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 motorman 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 release of the brakes the power was turned into the motors. The case rests solely upon the proposition that a release of the brakes caused the car to jump forward with a jerk; a proposition wholly contradictory of the laws of physics and to ordinary experience. Leaving out of consideration external causes, including condition of the track, curves, etc., we dare say that no motorman can impart a jerk to his car by releasing his brakes or by throwing off his current. Jerks and jolts come from throwing on the brakes or the current, active forces that tend to disturb the inertia.

The only forces tending to propel a car when the current is off are its momentum, and, if the track be downgrade, gravity. Opposed to both of these forces is friction. We will first consider the car to be running on level ground. Here the momentum is gradually expended in overcoming the friction and the car will slowly stop. The application of brakes increases the friction, so that the momentum is the more quickly overcome, and the speed undergoes a rapid reduction. If you release the brakes-i. e., remove the excess friction-you do not add to the momentum. ...