Jones v. Southern Railway Co. , 37 Ga. App. 447 ( 1927 )

Jenkins, P. J.

1. Under the ruling in Lowe v. Payne, 156 Ga. 312 (118 S. E. 924), unless it is specifically made to appear that the failure of the servants of a railroad company to comply with a proved duty to anticipate the presence of persons upon the company’s track at the time,and place at which the trespasser was killed, was not only negligence, but, under the particular facts and circumstances, amounted to wantonness, or unless the faetp indicate that the servants of the defendant were in other respects guilty of wilful or wanton misconduct contributing to the homicide, the failure of the deceased trespasser to exercise ordinary care for his own safety, in knowingly and voluntarily exposing himself to imminent peril upon the tracks of the defendant company, would bar a recovery on account of his homicide.

2. The facts of the instant case are very similar to those indicated in Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812, 33 Ga. App. 631 (127 S. E. 274, 812). Here, as in that case, the action is grounded upon mere negligence, the plaintiff in the ease at bar having specifically stricken from his petition all allegations charging that the acts of negligence set forth. amounted to wilful or wanton misconduct on the part of the defendant. Wilful or wanton negligence on the part of the defendant being essential to a recovery, and the plaintiff, by his own interpretation of his petition, having eliminated any possible construction that the facts narrated were intended to set forth wilful or wanton misconduct, and it not appearing that,' even in the absence of such interpretation by the plaintiff, they could properly be so adjudged, the court did not err in granting a nonsuit.

3. The exception to the refusal of the court to admit certain evidence offered by the plaintiff for the stated purpose of showing the number of persons counted by a witness as passing over the track where the homicide occurred, within a stated period of time, is insufficient to present any question for determination by this court, since it nowhere appears from the record at what time, with reference to the homicide, the event sought to be proved occurred, and the only assignment of error is that to the ruling made the plaintiff “then and there excepted, now excepts, and assigns the same as error.”

Judgment affirmed.

Stephens and Bell, JJ., concur.