Western & Atlantic R. Co. v. Michael

• Decision Date: 14 April 1932
• Docket Number: 8727,8765.
• Citation: 165 S.E. 37,175 Ga. 1
• Parties: WESTERN & ATLANTIC R. CO. v. MICHAEL. MICHAEL v. WESTERN & ATLANTIC R. CO.
• Court: Georgia Supreme Court

165 S.E. 37

175 Ga. 1

WESTERN & ATLANTIC R. CO. v. MICHAEL.

MICHAEL v. WESTERN & ATLANTIC R. CO.

Nos. 8727, 8765.

Supreme Court of Georgia

April 14, 1932

Syllabus by the Court.

"Other negligence," within statute authorizing recovery for homicide, includes homicide resulting from ordinary negligence (Civ. Code 1910, §§ 4424, 4425, as amended by Acts 1924, pp. 60, 61, §§ 1, 2).

Allegations that trainmen knew, or should have known, of certain facts knowledge of which would show wanton negligence held insufficient to charge wanton negligence, as regards recovery for death (Civ. Code 1910, §§ 4424, 4425, as amended by Acts 1924, pp. 60, 61, §§ 1, 2).

Trainmen's failure to exercise ordinary care to prevent injury to one using private crossing constituted negligence, authorizing recovery for death, where persons habitually crossed there with knowledge and without disapproval of railroad (Civ. Code 1910, §§ 4424. 4425, as amended by Acts 1924, pp. 60, 61, §§ 1, 2).

Statute imposing liability for homicide held not violative of due process and equality clauses (Civ. Code 1910, §§ 4424, 4425, as amended by Acts 1924, pp. 60, 61, §§ 1, 2; Const. U.S. Amend. 14).

1. A mother may recover for the homicide of her child, minor or sui juris, upon whom she is dependent, or who contributes to her support, unless such child leave a wife, husband, or child; and she can recover the full value of the life of the child, without any deduction for necessary or other personal expenses of the deceased had he lived.

2. The word "homicide" as used in section 4424 of the Civil Code 1910 (as amended by Acts 1924, p. 60, § 1) includes "all cases where the death of a human being results from crime, or criminal or other negligence."

3. The language "other negligence," as used in section 4425 of the Civil Code 1910 (as amended by Acts 1924, p. 61 § 2), includes a homicide resulting from any negligence other than criminal negligence, and includes a homicide resulting from simple or ordinary negligence.

4. Properly construed, the petition in this case was brought by the mother for the recovery of damages for the homicide of her minor child, caused by simple or ordinary negligence of the servants of the railroad company.

5. Allegations in the petition that the servants of the company knew or ought to have known of certain facts, knowledge of which would make them guilty of willful or wanton negligence are equivalent to a charge of implied notice rather than of actual knowledge.

6. Where persons habitually, with the knowledge and without the disapproval of the railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of the custom, are bound, on a given occasion, to anticipate that persons may be upon the tracks at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.

7. Relatively to a person who, without license, is walking upon tracks of the railroad company at a point more than 50 feet from a public road crossing, and is injured between a blow post and such crossing, the omission of the engineer to comply with the requirements of the Act of August 19, 1918 (Acts 1918, p. 212), is not negligence, as these provisions raise no duty between the railroad company and such persons.

8. The aim of the statute set out in section 4424 of the Civil Code is to strike at the evil of the negligent destruction of human life, by imposing liability upon those who are responsible therefor. It is not beyond the power of the Legislature to attempt to preserve human life by making homicide committed by ordinary or simple negligence expensive; and the Legislature may pass a statute authorizing a person dependent upon the person killed to recover more than the loss sustained by such dependent, and may enact a penalty in addition to such loss, the same to go to such dependent. Such a statute does not violate the due process and equality clauses of the Constitution of the United States.

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Suit by Vinnie Michael against the Western & Atlantic Railroad. Judgment was entered overruling defendant's motion to dismiss the petition, and defendant brings error, and plaintiff brings cross-bill of exceptions to review an order overruling its motion to strike the motion to dismiss.

Affirmed on the main bill of exceptions, and cross-bill of exceptions dismissed.

Statute imposing liability for homicide held not violative of equality clause (Civ.Code 1910, §§ 4424, 4425, as amended by Acts 1924, pp. 60, 61,§§ 1, 2; Const.U.S. Amend. 14).

See, also, 172 Ga. 561, 158 S.E. 426; 43 Ga.App. 703, 160 S.E. 93.

Mrs. Vinnie Michael brought suit against the Western & Atlantic Railroad for $35,000 as damages for the homicide of her son. In her petition she made these allegations: Her son was a minor 12 years of age. He was killed by the operation of a train of the defendant in the town of Tunnel Hill in Whitfield county on February 1, 1929. At the time of his death she was dependent upon him for her support, to which at the time of his death he was contributing, and to which he had been contributing for several years prior thereto. He was engaged in selling and delivering papers in said town. In addition thereto, he performed such duties as assisting her in keeping house, cooking, and taking care of his smaller brothers and sisters, and performing all duties incident to growing crops of corn, cotton, and vegetables. The full value of his life was $35,000, and petitioner has been damaged in that amount by defendant by reason of his death. On February 1, 1929, just before 8 o'clock a. m., her son left home, going toward the main part of the town of Tunnel Hill on his way to school, when it became necessary for him to cross the tracks of the defendant at a point directly north of and in the rear of petitioner's home, at which place he and other children of the neighborhood and grown persons had been accustomed to cross said tracks, which fact was known to defendant, its agents and employees in said town, its section foreman and section hands charged with the duties of the upkeep of said tracks, and was particularly known to the agents and employees of said defendant engaged in the operation of south-bound train No. 5, which was due to arrive at said town at or about 7:50 o'clock a. m. Defendant and its agents and employees have maintained, for a period of more than fifty years, a pathway across its tracks at a point about 100 yards west of the first railroad crossing west of the station in said town, which path leads from a point directly in rear of the home of petitioner at an angle in a northeasterly direction towards said town to a point directly opposite the switchstand which operates the switch to the track known as the house track in said town. People crossing said track at said point going north enter upon the right of way of defendant at the point in rear of her home, and leave the right of way at a point north of the switchstand. The use of said path has been continuous, uninterrupted, and with full knowledge and consent of the defendant, its agents and employees, and the public generally have established a custom of crossing the tracks of the defendant at said point, which fact was well known to the agents and employees of the defendant in charge of the operation of said passenger train. At various times the defendant and its agents and employees have placed cross-ties, cinders, and other materials on said pathway to make the same passable, impliedly inviting the use thereof by such persons as saw fit to use the same as a crossing.

At the time her son started on to the right of way of the defendant and across said track, he came first to the passing track of the defendant, on which was said south-bound passenger train known as train No. 5, which train was proceeding east on said passing track at a point about 200 yards west of the point where her son first came to the right of way and railroad track of the defendant, the tracks at said point running east and west, south-bound trains running in an easterly direction and north-bound trains running in a westerly direction. Just as her son came on to the right of way and passing track of the defendant, at which time he was in full view of the engineer, fireman, and porter of said train, the porter at said time being located on the pilot of the engine pulling said train, a north-bound freight train of defendant approached the place where the son of petitioner was intending to cross the main track, which freight train was running west on the main line track. The approach of this freight train attracted the attention of her son as he started walking along said passing track in an easterly direction toward the station in said town and along the path above described. While he was so traveling along said path, and while his progress along said path was blocked by the passing of said freight train, said passenger train approached from behind him at a point approximately halfway between the place where said path commenced on the south side of defendant's right of way and where said path ended on the north side of its right of way, ran over him, and inflicted injuries from which he died. The engineer, fireman, and porter of the passenger train saw him, or by the exercise of reasonable care and diligence should have seen him, because there was nothing to interfere with their seeing him from the time he first went on the right of way and walked along said passing track until he was run over, knocked down, and killed by said engine; the distance in...