Southern Ry. Co v. Hogan
| Decision Date | 24 July 1908 |
| Citation | 62 S.E. 64,131 Ga. 157 |
| Parties | SOUTHERN RY. CO. v. HOGAN. |
| Court | Georgia Supreme Court |
One who knowingly and voluntarily takes a risk of injury to his person or property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, cannot hold another liable for damages from injuries thus occasioned.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1294.]
Applying this rule to the testimony of the plaintiff and that of the other witnesses introduced in his behalf, and considering all the testimony in the light most favorable to him, a verdict in his favor was without evidence to support it
(Syllabus by the Court.)
Error from Superior Court, Habersham County; J. J. Kimsey, Judge.
Actions by W. J. R. Hogan against the Southern Railway Company. The cases were consolidated. Judgment for plaintiff, and defendant brings error. Reversed.
Hogan brought two suits against the Southern Railway Company for damages, one being for personal injuries to himself, and the other for injuries to his wagon, harness, and team, all caused by the same acts of alleged negligence of the defendant The cases were consolidated and tried as one. A verdict was rendered for the plaintiff, and a writ of error sued out by the defendant brings under review the overruling of its motion for a new trial. According to plaintiff's testimony and that of other witnesses' introduced by him, the facts, so far as are here material, were as follows: Plaintiff was shipping wood over defendant's road from one of its stations, and had requested the station agent, Grant, to have a car for the wood placed near the end of a side track. Grant promised to do this, but the car was not left at that place, but on the side track nearly opposite the depot and east of the main line. Prior to the day plaintiff and his property were injured, he had hauled 18 loads of wood to be shipped, and placed it on an embankment opposite to and east of the point where the car in question was left the afternoon before. It was perfectly safe to load the cars from the east, or embankment, side, but required more time than to load from the west side, where the track was level with the ground. The distance between the main line and the side track east of it was estimated by plaintiff to be five or six steps, wide enough, as he testified, to turn a wagon in without driving over either track; but, according to the testimony of several of his witnesses, the space was about eight or ten feet wide, and too narrow to turn a wagon in without driving on the tracks. Plaintiff's witnesses, who testified on the point, all stated that it was obviously dangerous to drive a team between the tracks and to the door of the car that was to be loaded, as trains frequently passed over the main line, and would frighten almost any team standing between the tracks. Plaintiff himself testified: That he did not much like to drive in there, as it would be dangerous, if he did not get warnings, and a train should pass before he could get the team out; that he knew it was a risk he was taking when he drove in there; that before driving in he always inquired of the station agent, or of one or the other of two young men, who it was shown by the evidence of plaintiff'switnesses were studying telegraphy under the agent at the depot and delivering and receiving freight for the agent in his absence, how long it would be before a train was due to pass; that on the day he was injured, and previous to the occurrence in question, he had hauled five loads and loaded them on the car from between the tracks; that on the morning of the day when he was injured, before driving in between the tracks, he had asked Thompson, one of the young men, how long it would be before a train would pass, and upon the information that he had received had driven in, but it turned out that Thompson was mistaken in his estimate of the time that would elapse before the coming of a train, as one came by sooner than Thompson said it would and frightened a mule of plaintiff's team, but he and the driver succeeded in holding it; and that, before driving in with the last load, he asked Thompson "if the train was due, " and he said he supposed "not for 10 or 15 minutes, " to which plaintiff replied: "If it don't come before 10 minutes, I can get the load off and out." Neither said anything more. Plaintiff thought he and his driver could unload in 5 minutes, but his driver, Burrell, who was helping him, thought it would take them about 10 minutes to unload. Burrell testified that he told plaintiff that he did not like to load from between the tracks, that it was safer to load on the other side of the car, from the embankment, and that plaintiff replied "he didn't have time to handle it so much." Burrell further testified that plaintiff had been told by his son, that morning, that it would be better to load from the top of the cut, and the son "said something to him about its being dangerous." Plaintiff testified that "it was a little bit dangerous" to load from between the tracks, but that he did not think "it was dangerous with proper warning, " and that "it was easier to unload the wood from that side than it was to carry it up on the hill and unload it." After plaintiff had made the inquiry of Thompson, Burrell drove between the tracks, to the door of the car, and he and the plaintiff began throwing the wood from the wagon into the car, and, when they had unloaded about two-thirds of it, a fast train, not scheduled to stop at that station, approached, running about 50 miles an hour. It blew no signal whistle for the station, nor blow-post whistle for the public crossing, a short distance north of the depot. Plaintiff first saw it when it was about 75 or 100 yards away, coming out of a cut and around a curve, and too late to get the team out. The whistle blew when about 75 yards away. The mule which was being held by Burrell became frightened, and, by rearing and plunging in its efforts to get away, backed the wagon on the main line, causing it to be struck and the team killed and the plaintiff injured. There was nothing in the evidence submitted by the defendant that tended to aid the plaintiff, and it is unnecessary to set forth any of it.
John J. Strickland, for plaintiff in error.
Thompson & Bell and Arnold & Arnold, for defendant...
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...In Beasley v. Elder, 88 Ga.App. 419, 76 S.E.2d 849, 851, the Court of Appeals quoted and followed the ruling in Southern Railway Co. v. Hogan, 131 Ga. 157, 62 S.E. 64, that "One who knowingly and voluntarily takes a risk of injury to his person or property, the danger of which is so obvious......
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...the risk, and cannot recover when he is injured, for he has failed to exercise ordinary care for his own safety. Southern R. Co. v. Hogan, 131 Ga. 157(1), 62 S.E. 64; Moore v. Southern Railway Co., 136 Ga. 872, 72 S.E. 403. '(T)he plaintiff, as a conscious and responsible human agent, must ......
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...prudence would have subjected himself thereto, cannot hold another liable for damages for injuries thus occasioned. So. Ry. Co. v. Hogan, 131 Ga. 157, 62 S. E. 64; Zachery v. Mayor of Madison, 18 Ga. App. 490(1), 89 S. E. 594; Bridger v. Gresham, 111 Ga. 814, 35 S. E. 677; Civil Code 1910, ......
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