Southern Ry. Co. v. Wiley

• Decision Date: 24 April 1911
• Docket Number: 2,898.
• Parties: SOUTHERN RY. CO. v. WILEY.
• Court: Georgia Court of Appeals

71 S.E. 11

9 Ga.App. 249

SOUTHERN RY. CO. v. WILEY.

No. 2,898.

Court of Appeals of Georgia

April 24, 1911

Syllabus by the Court.

Where a suit to recover damages was based on the theory of a willful and wanton act, and a recovery was authorized only on that theory, it was error to instruct the jury in effect that the defendant would be liable on proof of negligent conduct alone.

(Additional Syllabus by Editorial Staff.)

Failure of those in charge of a locomotive to sound a crossing signal at a crossing several hundred yards from the point where the engine struck and killed a person walking upon the track was not of itself negligence as to the person so killed, but could only be considered as a circumstance, in connection with other facts, indicating negligence at the place of the killing.

There may be a recovery for a willful and wanton injury inflicted upon another, though such other may be a trespasser or wrongdoer, and may be himself guilty of contributory negligence.

Error from City Court of Hall County; Geo. K. Looper, Judge.

Action by Mrs. W. J. Wiley against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

C. R Faulkner, Ed Quillian, and Jno. J. Strickland, for plaintiff in error.

H. H Dean, for defendant in error.

HILL C.J.

This is a suit brought by the plaintiff against the railroad company to recover damages for the wanton and willful killing of her husband. She recovered a verdict for $1,500, and the defendant's motion for a new trial was overruled. The evidence is within a narrow compass, and briefly stated is as follows:

The decedent, 60 years of age, was walking on the track of the railroad several hundred yards from a public crossing. He was quite deaf, the wind was blowing at a high rate directly in his face as he walked, and a freight train, running from 20 to 30 miles an hour, coming up behind, ran over and killed him. The engineer saw him walking on the track at a distance of between 300 and 400 yards before he reached him. There was a pathway on the side of the track for pedestrians, although pedestrians were in the habit of using the middle of the track at that place. As to this point there is no controversy in the evidence. The plaintiff's witnesses testified that the engineer did not blow the whistle at the public crossing about 300 yards from where the deceased was killed, and did not blow the whistle or ring the bell, or apparently make any effort to check the speed of the train, before reaching the decedent.

The engineer testified that he did blow the whistle at the blow post when approaching the crossing, some 300 yards from where the decedent was killed; that when he first saw the decedent walking on the track he assumed that he would get off the track before the train reached him, but, realizing in a few seconds that the decedent did not intend to get off the track, he blew his whistle, put on the brakes, including the emergency brakes, and did all he could to stop the train, but that it was impossible to stop it in time to prevent the homicide. The other employés of the company substantially corroborate this testimony of the engineer, especially as to the signals which he gave and the efforts which he made to stop the train.

From the undisputed facts it is clear that the decedent was a trespasser, and that he was guilty of contributory negligence. As Chief Justice Bleckley says in the case of Central Railroad & Banking Co. v. Smith, 78 Ga. 698 3 S.E. 398, under somewhat similar facts: "It is manifest that plaintiff was out of his place at the time he was injured. Grant that the track was often used by persons to walk along it and there was no objection to such use, and that plaintiff was there by implied or tacit license, he was there under circumstances which required him to have all his senses on the alert for trains, and to get out of the way when any of them approached." Here, according to plaintiff's own language, as well as the allegations of the petition, the decedent "was quite deaf and very hard of hearing." It cannot be questioned that for a person with this infirmity to walk on a railroad track, where many trains were running at all hours of the day, without constantly using his sense of sight to guard against the approach of a train, was negligence. Indeed, it is not denied that the decedent was a trespasser, or that he was guilty of contributory negligence; and the suit is based entirely on the theory that even though he was a trespasser, and guilty of contributory negligence, the railroad company is nevertheless liable for his death, because the killing was willful and wanton. In other words, the suit is not one to recover damages due to the negligent conduct of the employés of the railroad company, which caused the death of the decedent. It was within its rights in the running of its cars at that place at the rate of speed that the evidence, even for the plaintiff, shows it was running; and as the decedent was some distance from the crossing, even if it had failed to obey the crossing law with reference to signals, this was not an act of negligence of itself, in so far as the decedent was concerned, and could only be considered as a circumstance, in connection with other facts, indicating negligence at the place of the killing; and the engineer had the right to presume that the decedent, who apparently was capable of taking care of himself, would get out of the way of the approaching train. And while it may be true that, when the engineer first saw the decedent walking on the track, it may have been his duty, out of abundance of caution, to blow the whistle as a warning of approaching danger, yet, having no knowledge of the decedent's deficiency in his faculty of...