Seabd. Air Line Ry v. Shigg

• Decision Date: 18 March 1903
• Citation: 43 S.E. 706,117 Ga. 454
• Parties: SEABOARD AIR LINE RY. v. SHIGG.
• Court: Georgia Supreme Court

43 S.E. 706

117 Ga. 454

SEABOARD AIR LINE RY.

v.SHIGG.

Supreme Court of Georgia.

March 18, 1903.

RAILROADS—TRESPASSER ON TRACK—ACTION FOR INJURIES.

1. A petition for damages by the administratrix of one who was killed in the state of South Carolina while admittedly trespassing on the right of way of a railroad company, which alleges that the killing was negligent, careless, and wanton, but the specific allegations of which distinctly negative any idea of gross or wanton negligence, is fatally defective, and should be dismissed on general demurrer. Under the laws of South Carolina, it is necessary to a recovery, under the circumstances mentioned, that the killing should have been due to wanton negligence.

(Syllabus by the Court.)

Error from City Court of Savannah; T. M. Norwood, Judge.

Action by Patsy Shigg, administratrix of Robin Shigg, against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant brings error. Reversed.

Mackall & Anderson, for plaintiff in error.

Twiggs & Oliver and W. H. Wade, for defendant in error.

CANDLER, J. Patsy Shigg, as administratrix of Robin Shigg, sued the Seaboard Air Line Railway for damages on account of the alleged negligent killing of Robin Shigg by a train of the defendant company. From the petition it appears that on a named day the deceased, with two children, aged, respectively, 10 and 12 years, was walking on a trestle belonging to the defendant, which crossed the Savannah river from the state of Georgia to the state of South Carolina. This trestle was about four miles long. Shigg lived on an island in the Savannah river, on the South Carolina side; and on account of the fact that severe rain storms had so swollen the river as to render it practically impossible for him to reach his home from the Georgia side by means of a boat, which he generally used, it was necessary for him, in order to reach his home, to be on said trestle, proceeding in the direction he was taking. While he and the two children were on the trestle, and within a few hundred yards of the South Carolina end, a passenger train of the defendant, on its way from the city of Columbia, S. C, to the city of Savannah, came in sight of the party on the trestle, on a straight stretch of track leading up to the trestle from the South Carolina side. When the train appeared in sight of Shigg and the children, they made frantic efforts, and used every means in their power, to reach the South Carolina end of the trestle before the train reached it. Shiggwas running in advance of the two children, and when it became apparent that the younger and weaker of the children would not be able to reach the shore unaided, he turned and gathered her in his arms, with the result that the older child reached the shore before the train arrived, while Shigg and the younger child were struck by the engine while within 30 feet from the shore, knocked from the trestle, and killed. It was alleged that Shigg and the children were in view of the engineer and fireman of the engine, "the morning being clear and the sun shining brightly, " and that the engineer, seeing the efforts they were making to get off the trestle, "supposed that they would succeed, and negligently, carelessly, and wantonly allowed said train to continue at its rapid speed of about forty miles per hour, and, when the said engineer endeavored to check the speed of said train in order that your petitioner's said husband and the said children might escape with their lives, the rapid speed of said train and the near proximity of the helpless victims rendered the effort of said engineer futile, and the said train, after it had struck and killed your petitioner's husband, ran by fully its entire length before it was brought to a full stop." By amendment it was alleged that the homicide occurred on the South Carolina side of the river, and in the original petition the following extract from the statute law of South Carolina is set out as being applicable to the case: "Whenever the death of any person shall be caused by the wrongful act, neglect or default of...