Underwood v. Western & A.R. Co.

• Decision Date: 22 July 1898
• Citation: 31 S.E. 123,105 Ga. 48
• Parties: UNDERWOOD v. WESTERN & A. R. CO.
• Court: Georgia Supreme Court

31 S.E. 123

105 Ga. 48

UNDERWOOD v. WESTERN & A. R. CO.

Supreme Court of Georgia

July 22, 1898

Syllabus by the Court.

A petition filed against a railroad company for damages, in which it is alleged that the plaintiff, a boy of 10 years of age, was injured while attempting to get upon the ladder of a moving freight car, it not alleging, however, that this attempt was known to any of the employés in charge thereof sets forth no cause of action. The foregoing is true notwithstanding the fact that upon previous occasions he had been in the habit of climbing upon, and riding on, the moving trains of the defendant, with the knowledge and permission of its agents and employés.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by Dominick Underwood, by his next friend, against the Western & Atlantic Railroad Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Maddox & Terrell, for plaintiff in error.

Payne & Tye, for defendant in error.

COBB J.

Dominick Underwood, by his next friend, brought suit against the Western & Atlantic Railroad Company. The petition alleged, in substance, that petitioner, a child of 10 years of age, and without the capacity to comprehend the danger to which he was exposing himself, attempted to get upon the steps of a ladder attached to a coal car of the defendant's freight train which was in motion, when his right foot was caught under the car wheel, which passed over him, causing serious injuries. For a great length of time prior to the injury, he had been in the habit of climbing upon, riding on, and getting down from, passing and moving trains belonging to and in control of the defendant, and on its line of railroad, at or near the point where the injury occurred; and this fact was known to the defendant, its agent and employés, and they negligently failed to warn him of the danger attending such attempts, and negligently failed to require him to cease from so doing, but negligently permitted him to climb upon its moving trains, and upon the date of the injury negligently permitted him to attempt to do so, with no effort to prevent the same, and without warning him of the danger incurred, and without requiring or attempting to require him to desist. The defendant owed him the duty of warning him, and of requiring him to remain away from the trains entirely, because of his youth, incapacity, and indiscretion. At the time of the injury, he was earning by his labor a stated sum per day; and he was thereby disabled from pursuing his usual avocation and performing usual manual labor, and injured permanently. Upon motion at the trial term, the case was dismissed, on the ground that the petition set forth no cause of action.

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