Gordon v. Atlantic Coast Line Railroad , 21 Ga. App. 812 ( 1918 )

Luke, J.

Janie Gordon sued tlie railroad company, alleging, that when she was walking beside its tracks in a path used by pedestrians with its knowledge, she was struck by a train and injured; and that her injuries were due to the defendant’s negligence, “in running or backing its train at a high and dangerous rate of speed of fifteen miles per hour, at a point on its tracks -which it knew, or in the exercise of ordinary care should have known, was frequented and traversed by pedestrians; in failing to give petitioner warning of the approach of said train, when defendant company knew, or in the exercise of ordinary care should have known, that petitioner was walking along the pathway beside said main-line track,” and “in failing to slacken the speed of said train, when it knew, or in the exercise of ordinary care should have known, that petitioner was not -aware of the approach of said train.” The testimony of the plaintiff showed that the path ■ along the right of way of the railroad was constantly and daily used by pedestrians, that there was plenty of room for walking beside the track, and that the pathway did not go upon but was beside the track, and persons could and did use the path and were safe from trains passing over the track; that at the time she was struck her mind was absorbed in observing another train and two men riding on the top of the cars, which were on a track forty or more feet away, and she did not observe or hear the approach of the defendant’s train, and was struck by a step of one .of its coaches. Held: Even if the plaintiff was a licensee on the path beside the defendant’s track, the defendant was not bound to anticipate that she in a moment would move from the place of safety to a place where a step of a coach of the passing train would-strike her. Her own testimony was-such as to be conclusive that from no negligence upon the part of the defendant was she injured, but that her injury was due to her own lack of care. The court did not err in granting a nonsuit.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.