Wright v. Southern Ry. Co.

• Court: Georgia Supreme Court
• Writing for the Court: HILL, J.
• Citation: Wright v. Southern Ry. Co., 139 Ga. 448, 77 S. E. 384 (Ga. 1913)
• Decision Date: 13 February 1913
• Parties: WRIGHT v. SOUTHERN RY. CO.

77 S.E. 384

139 Ga. 448

WRIGHT v. SOUTHERN RY. CO.

Supreme Court of Georgia

February 13, 1913

Syllabus by the Court.

Where a railroad company permitted pedestrians to walk longitudinally along its tracks within the switching yard and corporate limits of a city, which, by ordinance, prohibited the running of trains at a rate of speed in excess of six miles an hour and a person, while walking on one of two main line tracks connecting two switching yards (which main lines also were used for switching purposes), was killed by a switch train of the company, which at the time was running at a rate of speed in violation of the ordinance, and suit was brought against the company to recover damages for the homicide, it was a question of fact for the jury to determine whether, under all the evidence (which tended to show that many persons were accustomed to walk on the track at the point the homicide occurred), the servants of the company were under any duty to anticipate the presence of pedestrians on the track, and, if so, whether they exercised ordinary care and diligence to prevent the homicide. It follows that the court erred in directing a verdict in favor of the defendant.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by Jane Wright against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Moore & Branch, of Atlanta, for plaintiff in error.

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

HILL J.

Jane Wright brought suit against the Southern Railway Company to recover damages for the alleged tortious killing of her minor daughter, Idell Wright. At the conclusion of the evidence the court, on motion, directed a verdict in favor of the defendant, and the plaintiff excepted. The evidence disclosed the following facts: Between Brookwood and Armour station the defendant company had two railroad tracks, one known as the north-bound main line, and the other as the south-bound main line; its trains moving upon them in a northern and southern direction, respectively. Between the two tracks was a space 10 or 12 feet wide. The point at which the girl was killed was within the corporate limits of Atlanta. The tracks at this point were in a cut. Between the south-bound track and the bank on the north side of the cut was a space varying from 8 to 14 feet in width. The defendant company had a switching yard at Armour, and one west of the Brookwood bridge: the two main tracks connecting them being also used for switching purposes. At the eastern end of the yard at Armour were six or seven tracks, and at the western end of the switching yards there are a number of tracks. There were several factories at Armour, where approximately 200 persons were employed. A large number of these employés were accustomed to walk along the tracks between Armour and Brookwood bridge each day, and at the latter place take a street car for the city, and, in returning, would go over the same route. The pathway between the tracks furnished comparatively smooth walking in good weather; but in wet weather pedestrians would sometimes walk on the tracks. So far as the evidence discloses, no objection was made by the defendant to the use by pedestrians of its right of way above described. On the day of the homicide, while Idell Wright was walking on the south-bound track, between the rails, going towards Armour, with her back towards Peachtree road, one of the defendant's passenger trains, known as the Vestibule Limited, came into sight, going south on the track on which she was walking. When she saw the train meeting her, she stepped off the track on which she was walking and into the space between the two tracks. From there she went upon the northbound track, and as she got upon that track, still walking in the same direction, a freight engine, pushing cars in front of it, was upon the track going northward. She did not look in the direction from which the freight cars were approaching. She stepped on the track about 40 feet ahead of the freight train, which was running about 15 or 18 miles an hour, and was killed by that train. The city ordinances prohibited the running of trains within the city limits at a rate of speed in excess of six miles an hour.

The undisputed evidence in this case was that the killing of the deceased by the defendant's train was within the corporate limits of the city of Atlanta, and that, at the time of the injury, the train was running at a rate of speed of 15 miles, or more, an hour. In evidence was a certified copy of a city ordinance of Atlanta, which prohibited the running of trains, within its corporate limits, at a rate of speed in excess of six miles an hour. The defendant therefore, at the time of the injury, was guilty of negligence per se. Central Ry. Co. v. Bond, 111 Ga 13 (7), 36 S.E. 299; N.C. & St. L. Ry. v. Peavler, 134 Ga. 618, 68 S.E. 432. Whether this was negligence, however, with respect to the decedent, will depend upon her relation to the defendant company at the time of the homicide, and the duty owing to her in the circumstances under which she was killed. At the time of the fatal injury, the deceased was walking upon one of the main line tracks of the defendant, but within its switching yard limits, as set out in the foregoing statement, where the evidence tended to show that many persons were accustomed to walk each day longitudinally along the track to and from their work, without objection from the employés of the defendant. It is insisted that in these circumstances the deceased had no express license to be within the switching yard limits of the defendant, and that there could not have been an implied license to be there, and she must therefore be regarded as a trespasser; and, as there was no...