Williams v. Southern Ry. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: HILL, C.J. (after stating the facts as above).
• Citation: Williams v. Southern Ry. Co., 11 Ga.App. 305, 75 S.E. 572 (Ga. App. 1912)
• Decision Date: 10 July 1912
• Docket Number: 3,873.
• Parties: WILLIAMS v. SOUTHERN RY. CO. et al.

75 S.E. 572

11 Ga.App. 305

WILLIAMS v. SOUTHERN RY. CO. et al.

No. 3,873.

Court of Appeals of Georgia

July 10, 1912

Syllabus by the Court.

It is a sound and wholesome rule of law, conservative of human life and limb, that, without regard to the question whether a person killed or injured by a railroad train was a trespasser or licensee upon the track, those in charge of the running of the trains are bound to exercise ordinary care and diligence in approaching any point where people may be expected to be upon the track, or where the roadbed is constantly used by pedestrians.

While a railroad company is entitled to the exclusive use of the tracks in its switchyards, and there can be no implied license to the public to use such tracks, inconsistent with this exclusive right, yet this rule applies to switchyards proper, and has no application to a case where there is only one track, which is the main track of the company, although this track may be partly within the yard limits, and is occasionally used in connection with the switchyard.

Where a railroad company has laid planks across its trestle, or permitted the planks to be laid there, and people have used these planks as a footway across the trestle for years, it is not negligence per se for a pedestrian to use them for that purpose. It is a question for the jury to determine whether or not the extent of the use of the trestle as a footpath and the length of time such use has continued, have been sufficient to impose upon those operating the trains of the company the duty of anticipating the probable presence of persons on the track, and in approaching that particular point, to exercise ordinary care and watchfulness to avoid injury to them; and it was for the jury to determine whether under all the facts and circumstances, the plaintiff was guilty of such contributory negligence as would bar his right to recover.

To attempt to walk across a long, high, and narrow railway trestle, without ascertaining that a train is approaching, is so obviously and inherently dangerous as to prevent a recovery for an injury received as a result of a mere omission of the engineer to be on the lookout. Even if an invitation to so use a railway trestle will ever be implied the mere presence thereon of a narrow plank, upon which a pedestrian can walk across with apparent safety, is not sufficient to authorize the inference that pedestrians are invited to use the plank as a footway, and impose upon the employés on the locomotive the duty of anticipating at a given time the presence of a trespasser upon the trestle.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by T. L. Williams, by next friend, against the Southern Railway Company and others. Judgment for defendants, and plaintiff brings error. Reversed.

Thomas L. Williams, a minor, by his next friend, sued the Southern Railway Company and W. B. Robinson, an employé of the company, to recover damages for personal injuries sustained by him in jumping from a trestle on the railway right of way, within the yard limits of what is known as Armour Station, in Fulton county. He was endeavoring to cross the track over the trestle, and to prevent being run over by a train of the defendant company, the locomotive of which was being operated by Robinson, he jumped from the trestle and received his injuries. The petition alleges, in substance, that Robinson, the engineer, could easily have seen the petitioner on the track of the railway company for 200 yards before reaching the point where he was compelled to jump from the trestle in order to save his life, and that if Robinson had been performing his duties as engineer, in running the engine with proper care and diligence, he would have seen the petitioner in ample time to have stopped the engine before reaching him, or before it became necessary for him to jump from the trestle. It also alleges that Robinson was under the duty at the time to look out for pedestrians on the trestle, and to use ordinary care to prevent running them down or injuring them, and it is charged that the railway company and Robinson were negligent (1) in running the engine at too great a speed across the trestle and within the yard limits of Armour Station; (2) in not looking ahead and discovering the petitioner; (3) in not stopping the engine in time to prevent the necessity of petitioner's jumping from the trestle in order to save his life. By an amendment to the petition it was further alleged (1) that the trestle was constantly used by pedestrians at Armour Station, and that this fact was well known by the railway company and Robinson; (2) that Robinson, individually and as as employé of the railway company, was under the duty, at the time petitioner was run down and compelled to jump off the trestle, in passing over the trestle, to look out for pedestrians thereon, and to use ordinary care to prevent running them down and injuring them; (3) that as a matter of fact Robinson saw petitioner upon the trestle when the engine was 600 yards from him, and that, if he had exercised ordinary care, he could easily have stopped the engine in time to prevent the injury to plaintiff.

A general demurrer to the petition was overruled. Plaintiff's evidence made in substance the following case: Between 2 and 3 o'clock in the afternoon of March 17, 1909, he was walking on the trestle of the railway company, going towards Armour Station, which was south of the trestle. The trestle was from 100 to 300 yards in length, passing over Peachtree creek and the tracks of the Seaboard Air Line Railway. The distance from the trestle to the ground below was from 25 to 100 feet. The trestle was narrow at the southern end. The point where the plaintiff jumped from the trestle was about 30 or 40 feet from the ground. There was only one track across the trestle, and this was the main track of the railway company. In the middle of the trestle there was a plank walk, extending entirely across the length of the trestle, with the exceptions of a few feet on both ends. This walkway consisted in some places of two planks, 2x10 or 2x12 inches. In some places, however, there was only one of these planks. This plank walkway had been on the trestle for five years before the injury, but has been taken up since that time. Plaintiff was about halfway across the trestle when he first heard and saw the approaching engine, and in his opinion the engine was then about 300 or 400 yards away. The engine was pulling a freight train, and was running about 25 or 30 miles an hour. The engine was a switch engine. The only signal which the plaintiff heard from the approaching train was the blowing of the whistle four or five times in rapid succession when he was about midway the trestle. North of this trestle, and about 75 yards from the end, there was a deep cut. The track over this cut to Armour Station, going south, was practically straight, there being only a slight curve. The curve was on the right-hand side of the engineer going towards Armour Station, and there was an unobstructed view from the cut to the trestle. As soon as the engineer got out of the cut he could see the whole trestle. About 400 or 500 yards north of the trestle is a public road crossing, known as "Mason's Crossing." The only way to get to Armour Station from this crossing is to cross the trestle or go around on this road, a distance of a mile. Plaintiff did not know anything about the latter way of getting to Armour Station. He was a stranger there, and had never been on the trestle before. He did not know that Armour Station was just south of the trestle. At this point it was impossible to cross the creek, except by way of the trestle, for the reason that the ravine traversed by the trestle was deep, rough, and precipitous.

The country on the north side of the trestle was settled to some extent, and, while there were no houses between the trestle and the crossing, there was a small country settlement just beyond the trestle--about eight houses, occupied by workmen. South of the trestle the country was rather thickly settled with fertilizer plants and dwelling houses. This trestle was used frequently and generally, both by the employés of the fertilizer plants and by other people living on both sides of the trestle. There were about 400 employés at the plant, and the people used this plank footway as a path. This pathway was used more frequently in the mornings and at night by the employés of the plant in going to and from their work, and had been so used for some five years. This trestle is within the yard limits of Armour Station. About 10 or 15 steps from the south end of the trestle there is a switch track running from the main line; and 15 or 20 steps farther on there is another switch track, running parallel with the main track. The switch track proper does not extend across the trestle to the other side; but the railway company, as occasion may require, switches its cars out on and beyond the trestle, and there was a great deal of switching in the yards, the moving of cars being constantly carried on.

At the conclusion of this evidence, counsel for the railway company moved the court for a nonsuit, which, after argument, was granted, and this judgment constitutes the only error to be reviewed.

Anderson, Felder, Rountree & Wilson and Geo. P. Whitman, all of Atlanta, for plaintiff in error.

McDaniel & Black, of Atlanta, for defendants in error.

HILL, C.J. (after stating the facts as above).

1. The first legal question arising under the facts is: What relation did the plaintiff occupy to the railway company at the time of the injury, and what corresponding duty did the company owe to him? Was he a trespasser or a licensee? It is insisted by the railway company that he was...