Tice v. Central of Georgia Ry. Co.
| Decision Date | 12 May 1920 |
| Docket Number | 11154. |
| Citation | 103 S.E. 262,25 Ga.App. 346 |
| Parties | TICE v. CENTRAL OF GEORGIA RY. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
(a) Ordinarily the only duty which a railway company owes to a trespasser upon or about its property is not to injure him wantonly or willfully after his presence has been discovered. Ashworth v. Southern Ry. Co., 116 Ga. 635, 43 S.E 36, 59 L.R.A. 592. But failure to exercise ordinary care to prevent the injury to a trespasser after his presence has become known may amount to wantonness. Charleston Railway Co. v. Johnson, 1 Ga.App. 441, 57 S.E. 1064; L. & N Railroad Co. v. Plunkett, 6 Ga.App. 684, 65 S.E. 695.
(b) Generally the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks, and the duty of exercising such care and diligence does not in such case arise until the presence of the trespasser becomes known. Southern Ry. Co. v Chatman, 124 Ga. 1026, 53 S.E. 692, 6 L.R.A. (N. S.) 283, 4 Ann.Cas. 675; Nashville, etc., Ry. Co. v Priest, 117 Ga. 767, 45 S.E. 35.
(c) The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way belonging to a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute the persons so using the track license of the company; and, in the absence of the company's permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser. Southern Ry. Co. v. Barfield, 112 Ga. 181, 184, 37 S.E. 386.
(d) 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 upon the employés of the company operating the train; and upon the discovery of a person in such peril, ordinary and reasonable care and diligence must be exercised by the company not to injure him. Southern Ry. Co. v. Chatman, supra.
(e) Whether or not 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 and cars with the special duty of looking out for the presence of a trespasser at the time and place of the injury is generally a question for the jury to determine, in the light of all the evidence introduced. Crawford v. Southern Ry. Co., 106 Ga. 870, 33 S.E. 826; Wright v. Southern Ry. Co., 139 Ga. 448, 77 S.E. 384. See, also, Gulf Line Railway Co. v. Way, 137 Ga. 109, 110, 72 S.E. 917.
(f) Where an action is brought for the homicide of a trespasser, shown to have been occasioned by the operation of defendant's cars, the presumption of negligence does not arise against the defendant, unless it appears that at the time of the injury there was due from the company to the person injured a degree of diligence to prevent such injury. Holland v. Sparks, 92 Ga. 753, 18 S.E. 990. But where it appears from the circumstances of the case that such diligence did devolve upon the company, and that it did owe a duty to anticipate the presence of the trespasser at the time and place of the injury, then, upon proof of the homicide by the company, such presumption of negligence against it does arise. Crawford v. Southern Ry. Co., supra. See Pope v. Seaboard Air Line Ry., 21 Ga.App. 251, 252, 94 S.E. 311.
(a) But even in a case where from the evidence the jury would be authorized to believe that a special duty existed of anticipating the presence of a trespasser at the time and place of the injury, still it is the general rule that the company is authorized to act on the presumption that such a person, apparently of full age and capacity, who is standing or walking along or near a track, will leave it in time to save himself.
(b) If, however, in a case where the presence of the trespasser is or ought to be known, there should also be apparent some fact or circumstance reasonably indicating that the person so exposed is incapacitated to protect himself from the impending danger, or so off his guard as should lead the company to reasonably infer that he must fail to do so, then and in such event, despite the contributory negligence of the trespasser, a special duty devolves upon the company to exert itself to avoid the injury. Cen. R. v. Brinson, 70 Ga. 207; Ga. R. v. Williams, 74 Ga. 723, 736; Western & Atlantic R. Co. v. Bailey, 105 Ga. 100, 102, 31 S.E. 547.
(c) Whether or not the facts alleged and proved are sufficient to reasonably indicate to the company that the trespasser was so engrossed or...
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