Western & A. R. Co v. Bailey

Decision Date22 July 1898
Citation105 Ga. 100,31 S.E. 547
CourtGeorgia Supreme Court
PartiesWESTERN & A. R. CO. v. BAILEY.

Railroads — Trespassers—Negligence — Proximate Cause—Master and Servant.

If an engineer, while running a train, saw a trespasser upon the track in time to stop before striking him, but nevertheless, "carelessly, negligently, recklessly, and wrongfully, allowed and permitted" the train to "run at a reckless and dangerous rate of speed without any bell or whistle being sounded, or without any other danger or alarm signal being given, or without any effort to stop said train being made, " and the trespasser was thus killed, and if his body was hurled against an employe of the railroad company, who was free from fault or negligence, and in his proper place, performing his duties as a servant of the company, and he was in this manner injured, he had a cause of action against the company.

(Syllabus by the Court.)

Error from superior court, Whitfield county; A. W. Fite, Judge.

Action by A. J. Bailey against the Western & Atlantic Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Payne & Tye and R. J. & J. McCamy, for plaintiff in error.

Marchbanks & Matthews and B. Z. Herndon, for defendant in error.

LITTLE, J. It may be stated as a general rule that one who goes upon the track or premises of a railroad company, except at a public crossing or in a highway, without the invitation or license of the company, express or implied, is a trespasser. 3 Elliott, R. R. § 1252. It may be also stated as a general rule that the company owes no duty to a trespasser upon its track, except to do him no willful or wanton injury. A trespasser Is a wrongdoer, and it is a general principle of jurisprudence that the courts will not aid a wrongdoer. The facts that the trespasser is a wrongdoer does not, however, justify malicious, wanton, or willful maltreatment of him; and the failure to use reasonable care to avoid injury to him after the discovery of his danger may sometimes be sufficient evidence of wantonness or willfulness. But neither negligence nor willfulness can ordinarily be shown in this way where an adult, or person apparently able to take care of himself, is upon the track, because the railroad employes have a right to assume, in the absence of anything to the contrary, that he will get off the track, or take such other precautions as may be available to avoid injury to himself. Id. § 1253, and authorities cited. If, after discovering the danger to the trespasser, and his inability to escape, the company fails to exercise reasonable care, it will be liable, if the exercise of such care would have prevented the injury; and, although there is a clear distinction between negligence and willfulness, yet a reckless and wanton disregard of consequences, evincing a willingness to inflict injury, may amount to willfulness, although there is no direct proof of actual intention to inflict the injury complained of. Id. § 1257, and authorities cited; Railroad Co. v. Denson, 84 Ga. 782, 11 S. E. 1039. In the case of Railroad Co. v. Vaughan, 93 Ala. 209, 9 South. 468, where a trespasser was seen by the engineer upon a long trestle in time to have stopped the train, and the latter did nothing to stop or slacken the speed of the train, but went on, speculating on the chances of the trespasser's reaching the end of the trestle before the train arrived there, although it must have been apparent that the trespasser could not escape, it was held that the engineer was guilty of such recklessness as amounted to willfulness, and that the company was liable for running over and killing such trespasser...

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21 cases
  • Charleston & W. C. Ry. Co v. Johnson
    • United States
    • Georgia Court of Appeals
    • 11 Marzo 1907
    ...frightened him and caused him to fall and jump from a train in motion). Likewise the defendant was held liable in Western & Atlantic R. Co. v. Bailey, 105 Ga. 100, 31 S. E. 547, where the engineer made no effort to stop the train, after seeing the trespasser about to be struck, and in Centr......
  • Savannah Elec. Co. v. Wheeler
    • United States
    • Georgia Supreme Court
    • 9 Julio 1907
    ...held to be one for the jury. See, also, Savannah Florida & Western Ry. Co. v. Slater, 92 Ga. 391, 17 S.E. 350. In Western & Atlantic R. Co. v. Bailey, 105 Ga. 100, 31 S.E. 547, petition alleged that an engineer, while running a train, saw a trespasser in time to stop before striking him, bu......
  • Savannah Electric Co v. Wheeler
    • United States
    • Georgia Supreme Court
    • 9 Julio 1907
    ...to be one for the jury. See, also, Savannah Florida & Western Ry. Co. v. Slater, 92 Ga. 391, 17 S. E. 350. In Western & Atlantic R. Co. v. Bailey, 105 Ga. 100, 31 S. E. 547, a petition alleged that an engineer, while running a train, saw a trespasser in time to stop before striking him, but......
  • Lowe v. Payne
    • United States
    • Georgia Supreme Court
    • 8 Septiembre 1923
    ... ... This principle is also applicable to ... cases in which plaintiffs are suing for the homicide of ... others. In Macon & Western R. Co. v. Johnson, 38 Ga ... 409, 431, which was an action by a widow against a railroad ... company for the homicide of her husband, the court ... 553, 44 ... Am.St.Rep. 145 (5); Parish v. W. & A. R. Co., 102 ... Ga. 285, 29 S.E. 715, 40 L.R.A. 364; W. & A. R. Co. v ... Bailey, 105 Ga. 100, 31 S.E. 547; Ga. R. & B. Co. v ... Fitzgerald, 108 Ga. 507, 508, 34 S.E. 316, 49 L.R.A ... 175; Hopkins v. So. Ry. Co., 110 Ga. 85, ... ...
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