Southern Ry. Co. v. Kelley

• Decision Date: 18 November 1935
• Docket Number: 24666.
• Citation: 182 S.E. 631,52 Ga.App. 137
• Parties: SOUTHERN RY. CO. et al. v. KELLEY.
• Court: Georgia Court of Appeals

182 S.E. 631

52 Ga.App. 137

SOUTHERN RY. CO. et al. v. KELLEY.

No. 24666.

Court of Appeals of Georgia, Second Division

November 18, 1935

Syllabus by Editorial Staff.

Trainmen are ordinarily not bound to anticipate trespasser's presence, and generally have no duty of exercising ordinary care to protect trespasser until after actually discovering his presence.

Trainmen have duty of anticipating presence of, and danger to trespasser, where locality, circumstances, and known habits of public give reason to apprehend trespasser's presence.

Whether locality, time, circumstances of trespasser's injury, and known public use of railroad right of way charged trainmen with special duty of looking out for trespasser at time and place of injury is generally question for jury.

Trainmen's failure to fulfill duty to anticipate trespasser's presence, although constituting lack of ordinary care, does not ordinarily amount to willful and wanton misconduct, and renders railroad liable for injury to trespasser only when trespasser was himself free from lack of ordinary care.

Where trespasser is not guilty of negligence in exposing himself railroad is liable for not fulfilling duty to anticipate his presence and for not thereafter taking reasonable precautions for his safety.

"Negligence," including "gross negligence," and "wilful and wanton misconduct" are not synonymous terms.

Petition against railroad for injury plaintiff sustained when run over by train at crossing while in unconscious condition resulting from attack of vertigo held sufficient to raise jury question as to plaintiff's right to recover on theory that plaintiff was free from negligence, and that railroad was negligent in failing to anticipate plaintiff's presence under facts alleged.

Failure to stop train and attend to plaintiff struck thereby at crossing authorized no recovery against railroad, unless trainmen were aware of plaintiff's presence on track before or after accident.

Error from Superior Court, Fayette County; Wm. E. H. Searcy, Jr. Judge.

Suit by M. T. Kelley against the Southern Railway Company and others. To review the judgment, defendants bring error.

Affirmed in part, and reversed in part.

Arnold & Battle, of Columbus, and J. W. Culpepper, of Fayetteville, for plaintiffs in error.

V. E. Adams, of Atlanta, and W. B. Hollingsworth, of Fayetteville, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

This was a suit for personal injuries. The petition alleged that at about 11 or 12 o'clock at night the plaintiff "suffered an attack of vertigo or fainting spell and collapsed while crossing defendant's track at a 'regular' crossing where the public has crossed said railroad tracks for perhaps twenty or tweny-five years or longer"; that he lay on the tracks "in an unconscious condition for some two or three hours," when the train "running up grade ran over him," he being visible from the engine for a distance of 300 yards; that the footpath or walkway on which he was crossing the tracks, although in a rural section, was used by the public generally "with the full knowledge and consent" of the railway company and its codefendant engineer who was in charge of the locomotive. The petition charges that the acts and omissions of the defendants were "gross negligence." It is not alleged that the defendants ever actually saw the plaintiff or were guilty of any willful or wanton misconduct. The negligence charged is the failure to keep a lookout for the plaintiff and the public in general at the crossing, the failure to see him in his helpless condition and stop the train, and the failure to render him assistance after he had been injured. The defendants demurred generally and specially to the petition, including the averments of negligence in failing to assist the plaintiff after he had been injured. There is no allegation that they saw him after he was struck. Held:

1. Ordinarily, the servants of a railway company are not bound to anticipate the presence of a trespasser on or about its tracks, and the duty of exercising ordinary care in order to protect such a trespasser does not generally arise until after his presence has been actually discovered. Southern R. Co. v. Chatman, 124 Ga. 1026, 53 S.E. 692, 6 L.R.A. (N.S.) 283, 4 Ann.Cas. 675; Nashville, etc., R. Co. v. Priest, 117 Ga. 767, 45 S.E. 35; Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812, 127 S.E. 274; Hammontree v. Southern R. Co., 45 Ga.App. 728, 165 S.E. 913; Tice v. Central of Ga. R. Co., 25 Ga.App. 346, 103 S.E. 262.

2. Where, however, from the locality, circumstances, and known habits of the public generally, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then the duty of anticipating the presence of and danger to such trespassers devolves on the employees of the company operating the train. Southern R. Co. v. Chatman supra. Whether the locality, the time, and the circumstances of an injury to one using the right of way, and the known habits and frequency of the public in using it, create such a condition as will charge the servants of the company operating the locomotive with the special duty of looking out for the presence of a...