Western & A.R. Co. v. Ferguson

• Decision Date: 17 July 1901
• Parties: WESTERN & A. R. CO. v. FERGUSON.
• Court: Georgia Supreme Court

39 S.E. 306

113 Ga. 708

WESTERN & A. R. CO. v. FERGUSON.

Supreme Court of Georgia

July 17, 1901

Syllabus by the Court.

1. The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence.

2. Failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should have been reasonably apprehended will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.

3. The evidence authorized the verdict, and the discretion of the trial judge in refusing a new trial will not be controlled.

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

Action by George D. Ferguson against the Western & Atlantic Railroad Company. Verdict for plaintiff. Defendant brings error. Affirmed.

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

Hoke Smith and H. C. Peeples, for defendant in error.

COBB J.

Ferguson sued the railroad company for damages alleged to have resulted from personal injuries received by him on account of the negligent operation of one of the defendant's trains. The plaintiff recovered a verdict, and the defendant's motion for a new trial, based on the general grounds only having been overruled, it excepted.

The evidence introduced in behalf of the plaintiff made substantially the following case: On October 7, 1899 plaintiff was struck and injured by one of the defendant's trains On the date named the plaintiff desired to take this train for Atlanta, which was due at Dalton at 7:10 in the morning; plaintiff knowing that the train was due to arrive at that time. A short time before the train was due, plaintiff came out of a barber shop, and started to walk obliquely along a footpath towards the depot to take the train. It was raining slightly, and plaintiff was carrying a raised umbrella over his head. There was a side track along by the side of the defendant's freight depot, between the barber shop and the main track, and extending a few feet beyond the freight depot. It was necessary to cross the main track in order to reach the passenger depot, and plaintiff intended crossing the main track lower down than the end of the side track beyond the freight depot. Walking in an oblique direction, plaintiff's face was in a direction diagonally across the track, and his side was towards a train which would approach from the north. There were some freight cars on the side track. When plaintiff reached a point 10 or 12 feet beyond these cars, from which he could see 150 to 200 feet up the main track, he looked up the track, and saw no train approaching. His watch indicated that it would be four minutes before the train was due, though plaintiff was unable to say whether the engineer had the same time he did. After looking up the main line, and seeing no train approaching, plaintiff walked casually along towards the main track, at the rate of 2 1/2 to 3 miles an hour, 8 or 10 steps, or about 30 feet, and, without looking further to see if a train was approaching, stepped upon the main track at a place where it was usual and customary for foot passengers to cross, and was struck by the train, which had run 150 to 200 feet while plaintiff walked 30. There was an ordinance of the city of Dalton prohibiting the running of trains at the place where the plaintiff was struck at a greater speed than 4 miles an hour, and the train which struck the plaintiff was running at a speed greatly in excess of that limit. Had the train been run at 4 miles an hour, the plaintiff could have gotten safely across the track before the train reached the point where he was injured. Plaintiff was given no warning of any kind of the approach of the train.

In the case of Railroad Co. v. Luckie, 87 Ga. 7, 13 S.E 105, Mr. Justice Lumpkin used the following language: "It seems to be the clear meaning of our law that the plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows he could, by ordinary care, after the negligence of the defendant began or was existing, have avoided the consequences to himself of that negligence." This language can convey no other impression than that, in cases of the character referred to, the duty on the part of the plaintiff to use ordinary care for his protection against the consequences of the defendant's negligence does not arise "until after the negligence began or was existing." The ruling in the Luckie Case was approved in terms in the case of Railroad Co. v. Gibson, 97 Ga. 497, 25 S.E. 484, where Mr. Chief Justice Simmons used the expression above referred to, saying that "the plaintiff in an action against a railroad company for personal injuries cannot recover, even though the company may have been negligent, if, after the negligence of the defendant began or was existing, the person injured could, by ordinary care, have avoided the consequences to himself of that negligence." In the case of Railroad Co. v. Attaway, 90 Ga. 661, 16 S.E. 958, the present chief justice used the following language: "The rule which requires one to avoid the consequences of another's negligence does not apply until he sees the danger, or has reason to apprehend it." In the case of Comer v. Barfield, 102 Ga. 489, 31 S.E. 90, Mr. Justice Fish says, in substance, that if one who was injured by the negligence of another used proper diligence, as soon as his peril was apparent, to avert the catastrophe, it could not be said that by ordinary care he might have avoided the consequences of the other's negligence. In Railway Co. v. Holmes, 103 Ga. 658, 30 S.E. 565, Mr. Justice Lewis says: "A party cannot be charged with the duty of using any degree of care or diligence to avoid the negligence of a wrongdoer until he has reason to apprehend the existence of such negligence. No one can be expected to guard against what he does not see and cannot foretell. The rule, therefore, which requires one to exercise ordinary care and diligence to avoid the consequences of another's negligence, necessarily applies to a case where there is opportunity of exercising this diligence after the negligence has begun and has become apparent." From the expressions used and the rulings made in the cases cited,--and there are many others where similar expressions are used and similar rulings made,--the rule of force with reference to the subject under investigation, seems to be well settled, and may be thus stated: The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. In such cases, and in such cases only, does the failure to exercise ordinary care to escape the consequences of negligence entirely defeat a recovery. In other cases (that is, where the person injured by the negligence of another is at fault himself, in that he did not, before the negligence of the other became apparent, or before the time arrived when, as an ordinarily prudent person, it should have appeared to him that there was reason to apprehend its existence, observe that amount of care and diligence which would be exercised under like circumstances by an ordinarily prudent person) such fault or failure to exercise due care and diligence at such a time would not entirely preclude a recovery, but would authorize the jury to diminish the damages "in proportion to the amount of default attributable to" the person injured. Comer v. Barfield, supra; Railroad Co. v. Holmes, supra; Railroad Co. v. Johnson, 38 Ga. 409. In some jurisdictions the mere failure to stop, look, and listen by one who is about to cross a railroad...