Southern Ry. Co v. Chatman

• Decision Date: 21 February 1906
• Citation: 124 Ga. 1026,53 S.E. 692
• Parties: SOUTHERN RY. CO. v. CHATMAN.
• Court: Georgia Supreme Court

53 S.E. 692

(124 Ga. 1026)

SOUTHERN RY. CO.

v.CHATMAN.

Supreme Court of Georgia.

Feb. 21, 1906.

1. Railroads—Injury to Trespasser—Variance—Instructions.

Where suit was brought for a personal injury alleged to have occurred while the plaintiff was crossing the tracks of a railway at a public street crossing in a city in South Carolina, and it was alleged that the employes of the railroad company were negligent in the manner in which they caused an engine and car to approach and pass over such crossing at an unsafe rate of speed, without keeping a proper lookout, and without giving any signal or warning of approach, it was error to so charge the jury as to leave them to infer that under such a declaration a recovery might be had if the injury did not occur at or near a public crossing, but in a railroad switching yard, although the plaintiff may have been a trespasser there, if the defendant's employes could have discovered his presence by the use of ordinary care, or that a recovery might be had if the plaintiff, when injured, was swinging upon a switch engine of the defendant in its switching yard, provided the defendant's employes could have discovered him by the use of ordinary care.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 1238.]

2. Same—Duty of Employes.

As a general rule, the agents of a railroad company operating one of its trains arenot required to anticipate the presence of a trespasser upon its tracks or property, and the duty of using ordinary care and diligence does not arise until his presence there becomes known.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1238, 1239.]

3. Same—Children.

This general rule applies as well to children as to grown persons.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 1239.]

4. Negligence—Care Required of Minors.

In determining what ordinary care requires in reference to children, the fact of their apparent size, age, and inability to protect themselves is proper for consideration by the jury.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 9.]

5. Railroads—Child on Track.

As to a child of tender years, no presumption arises that it will appreciate danger and will act with the discretion of an adult in getting out of the way of an approaching train, and persons in charge of a railway train are not authorized to act on such a presumption.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1239, 1282.]

6. Same—Duty to Trespassers.

The general rule that as to a trespasser upon a railway track the duty of observing ordinary care and diligence for his protection does not devolve upon the company's agents in charge of a train until his presence upon its track becomes known to them does not relieve the company under all circumstances from anticipating the presence of a trespasser upon its track and from taking proper precautions to prevent an injury to him. Where the circumstances are such that the employes of the company in charge of one of its trains are bound, on a given occasion, to anticipate that persons may be upon the track at a certain place, they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence. Bullard v. Southern Ry. Co., 43 S. E. 39, 116 Ga. 644.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1238, 1239.]

(Syllabus by the Court.)

Error from City Court of Gwinnett; E. W. Boine, Judge.

Action by Willie Chatman, by his next friend, Susan Moon, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Willie Chatman, a minor, by his next friend, Susan Moon, brought suit against the Southern Railway Company, alleging as follows: In the city of Greenville, S. C, the defendant's line of track crosses, just above the depot, a public street known as Riley street On January 1, 1904, the plaintiff, a minor 10 years of age, was passing over said public crossing in the exercise of all due care, and while upon it was run over by a switch engine of the defendant and his leg was crushed. The defendant was alleged to have been negligent in the following particulars: That the engine and train of cars were negligently being run at a speed of 15 miles per hour over said crossing, that the employes in charge of them negligently failed to keep a proper lookout ahead, that they failed to stop after plaintiff's presence upon the crossing was discovered, and that they failed to give any signal or warning by bell, whistle, or otherwise while approaching the crossing or passing over it. There were allegations as to the extent of the injury. It appears that an amendment was filed, which is not contained in the record, but which is stated in the charge of the court to have changed the allegation that the plaintiff was run over by a switch engine to one that he was run over by a car of the defendant attached to one of its engines. The defendant put in issue the substantial allegations of the plaintiff. The jury found for the plaintiff $1,000. The defendant moved for a new trial which was refused, and the defendant excepted.

S. J. Winn, D. K. Johnston, and Jno. J. Strickland, for plaintiff in error.

Arnold & Arnold, Walter E. Ormond, N. L. Hutch-ins, Jr., and Harvey Hill, for defendant in error.

LUMPKIN, J. (after stating the above facts). 1. The charge of the court in this case is not free from error. The suit was based on allegations that while the plaintiff, a boy 10 years of age, was passing over the tracks of the defendant at a public street crossing in the city of Greenville, S. G, and was in the exercise of due care, a car attached to an engine ran over and injured him; that the defendant's employes were negligent in causing the engine to be run over the crossing at a speed of 15 miles an hour, in failing to keep a proper lookout, in failing to stop after his presence upon the crossing was discovered, and in failing to give any signal or warning while approaching the crossing. On the trial the evidence on his behalf tended to support his allegations. The evidence for the defendant tended to show that the place where the injury happened was not at or near any public crossing, but in its yards, where there were a number of tracks, and where switching was done; that its employes did not know of, and had no reason to anticipate, the presence of the plaintiff at that place; and that, while they did not know just how he was injured, he admitted to the physicians who attended him that he was swinging on the engine when he was hurt-There was some conflict in the evidence as to whether people did frequently cross the tracks at that point. While in the early part of the charge the court said to the jury, "If the plaintiff is entitled to recover, he must recover upon the acts of negligence alleged in this declaration and the amendment, " yet, when asked to charge that if the plaintiff was not hurt at the crossing, but somewhere else in the defendant's yard, he could not recover under his petition, the court added words whichwere calculated to lead the jury to believe that It made no difference "whether the crossing be a legally established public crossing, or a place where people frequently cross the tracks of the defendant." He also stated to the jury, "Now, before the plaintiff can recover at all, some duty which the company owed the plaintiff must have been violated." He then immediately charged that if the plaintiff was a trespasser upon the tracks, and the place was not one frequented by people in crossing, but he was there of his own free will and accord, without invitation of the company, and that the company was not aware of his presence, "or could not have been, by the exercise of ordinary care, " it owed him no duty except not to injure him willfully or wantonly. At another part of the charge he instructed the jury that if the plaintiff was swinging or attempting to swing on the cars or engine, without the knowledge of the employes connected with the train, he would be a trespasser, and they would be charged with the duty only not to willfully and wantonly injure him; but "if his presence could by the exercise of ordinary care have been known, then the company would owe the plaintiff that degree of care which I have defined to you as being ordinary care. Now, gentlemen of the jury, these are the questions that have to be determined by you." Thus, in spite of the limitation expressed in the beginning of the charge, the judge indicated to the jury that a recovery might be had if there was a breach of duty on the part of the company toward the plaintiff, and then charged them as to the duty of the company in regard to trespassers in its switching yard, and to a boy swinging upon its engines or cars in such yard. It thus became quite possible for the plaintiff to make one case by his declaration, and recover on an entirely different state of facts.

2. The injury involved in this case occurred in South Carolina, and therefore the law applicable to it is to be determined without reference to any local statute of this state. No statute of South Carolina was pleaded or shown, and we must look to general principles and decisions not dependent upon statutes in particular jurisdictions. The English decisions afford little aid, as railroads are of comparatively recent origin, and laws were early enacted in that country on the subject of trespassing upon railway tracks. St. 3 &4 Vict. c. 97, § 16. The general rules in regard to trespassers on railroad tracks and the liability of the company for injuries to them have given rise to no little differences of opinion and conflict of decisions. Some of this, however, appears to have resulted from the want of a clear apprehension of the difference between general announcements of a rule and the application of it to the facts of particular cases, or from a failure to consider whether with a...