Smith v. Western & Atlantic Railroad , 22 Ga. App. 437 ( 1918 )

Jenkins, J.

(After slating the foregoing facts.) Under the decision rendered by the Supreme Court when this case was before-it (Western & Atlantic R. Co. v. Smith, supra), the question whether the defendant was ¿harged with' the duty of anticipating the presence of the deceased upon its tracks need not be considered,’ since the allegations of the petition then under review, which are set out in that opinion, and which sought to charge the defendant with that duty, are substantially the- same as those of the petition in the instant case, and the Supreme Court there held that.the facts alleged did not make out a case of negligence sufficient 'to support an action, and a general demurrer thereto should have been sustained. Under’ the allegations in the present petition, and the evidence, adduced upon the trial .of the case, the deceased was a trespasser upon the defendant’s tracks at the time he’was killed. As has been held- both by the Supreme Court ánd by this court, the only duty which a railway company ordinarily • owes to a trespasser upon or about its property is not to injure him wantonly or wilfully after his presence has been discovered, but failure to exercise ordinary care to prevent injury to a trespasser after his presence has become known is usually so much akin to wilfullness or wantonness as to’ create liability on the part of the company, where the failure to exercise that degree of care would render it liable. As a general rule, however, the servants of a railway company are not bound to anticipate the presence of a trespasser upon or about its tracks, and the duty of exercising such care and diligence does not in such a case arise until the presence of the trespasser becomes known. See Pope v. Seaboard Air-Line Ry., 21 Ga. App. 251 (94 S. E. 311), and cases cited. Therefore, the only question presented for our consideration in this case is whether under the evidence the defendant’s servants wilfully and wantonly killed the plaintiff’s son, or failed to exercise ordinary care and diligence to prevent the injury after his presence upon defendant’s1 tracks became known to the defendant’s servants.

The plaintiff introduced as its only witness the brother of the deceased, who testified that the deceased was killed by the engine of the defendant company. He further testified that at the time, his brother was killed he could not see him,, by reason of the passing of a freight-train on the Southern Eailway Company’s track between him and his brother. Where an action is brought for the homicide of a trespasser, shown to have been occasioned by the operation of defendant’s cars, the .presumption of negligence does' not arise against the defendant, unless it appears that at the time of the injury there "was due from the company to the person injured a degree of diligence to prevent such injury. In the evidence there is nothing that could raise any such presumption against the defendant, while oh the other hand the evidence of the engineer in charge of defendant’s locomotive, and the testimony of the conductor of the Southern freight-train passing this point at the time of - the injury, both exonerate the defendant from any act of negligence, and. this testimony is not in any way disputed. Regardless of how far the servants in charge of defendant’s -train might have seen the deceased before striking him, there was, under the evidence, no duty resting upon them to anticipate his presence upon the track, and thus the duty of- exercising ordinary care did not arise until his presence actually became known to those upon the engine. The engineer testified that when he first saw the deceased, the latter was within about forty feet of him; that the deceased was looking at the passing Southern freight-train, and was standing on the end of a cross-tie; “I commenced blowing my whistle at him, and he never did pay any attention to it. Then I slapped my brake on in emergency, but I was too close to him. . . I could not have checked the speed of that train sooner than I did. I couldn’t have done anything else except blow the whistle.” The conductor on the Southern train testified as follows: “The W. & A.-man blew at the boy. He blowed as quick as he saw him, looked like. The W. & A. man come around that curve off of the ‘S,’ and when he got to where he could see the negro he was not more than I should think 100 yards from him at the furtherest, and he blowed at the negro, but the negro never did seem to notice him. . . I don’t think the W. & A. train could have stopped after he saw him.” No one was introduced to contradict these witnesses, and while the brother of the deceased did testify that he “imagined” that any one on an engine approaching the point at which the deceased was killed could have seen him for three or four hundred yards, still, under the rule of law which has been stated, such a supposition fails to support the charge of negligence in this case. We do not think the jury would have been author-; ized under the evidence to return a verdict in the plaintiff’s favor. The court therefore did not err in directing a verdict in favor of the defendant.

Judgment affirmed.

Wade, O. J., arid LuTce, J., concur.