Thornton v. Southern Railway Company , 71 Ga. App. 530 ( 1944 )

Counsel for movant in his motion for a rehearing alleges that this court erred in stating that the controlling question in the case was whether the deceased, when walking on the tracks of the defendant company, as set forth in the petition, was a licensee or a trespasser.

Counsel in his original brief contended that the deceased was not a trespasser, but was a licensee, while counsel for the defendants contended that the deceased was a trespasser. We think that under all the facts of the case as set forth in the petition our statement as to the controlling question was correct. Moreover, if it be conceded that, under the facts of the case as stated in the petition, the defendant company owed to the deceased trespasser the duty not to wantonly or wilfully injure him after his presence on its track had been discovered, and the additional duty of anticipating his presence there, the sustaining of the general demurrer to the petition was not error. "If a homicide occurs at a place upon the track of a railway company, where it was the duty of the servants of the company to anticipate the presence of persons on the track, and their failure to so anticipate the presence of others thereon amounts to mere negligence, the negligence of the person killed, under such circumstances, amounting to the lack of ordinary care for his safety, and where the person killed by the exercise of ordinary care, could have avoided the consequences to himself of such negligence of the servants of the company [such facts] will prevent a recovery by a plaintiff who sues for such homicide."Lowe v. Payne, 156 Ga. 312 (supra); and also, to the same effect, Atlantic Coast Line R. Co. v. Fulford (supra). "The suit being for simple negligence, and the petition showing on its face that the deceased could have avoided the consequences of the defendant's alleged negligence by the use of ordinary care, it was error to overrule the general demurrer [to the petition]."Pollard v. Reid, 56 Ga. App. 594 (supra). See alsoSouthwestern R. Co. v. Johnson, (supra), and the rulings quoted in our original opinion from Atlantic Coast Line R. Co. v. Fulford, and Leverett v. L. N. R. Co. (supra). The facts in the two last-named cases are substantially similar to those of the instant case. In Kennemer v. W. A. R., 42 Ga. App. 266 (155 S.E. 771), where the facts were substantially similar to those of the instant case, this court quoted approvingly the decision in the Fulford case (as set forth in our original opinion in the instant case), and cited many cases to the same effect.

Counsel for movant cites many decisions in his motion for a rehearing, but relies very strongly on the ruling in Vaughn v.L. N. R. Co., 53 Ga. App. 135 (supra). That case, in our original opinion in the instant case, was discussed and differentiated from this case. Counsel, however, contends that we misconstrued the facts of the Vaughn case when we treated it as a railroad-crossing case. The petition in that case alleged that there was a well-defined pathway for pedestrians crossing over the railroad track, and that "as he [Vaughn] crossed from one side of the track to the other, and while in the line of said pathway he was run into" by the train. Counsel argues that the foregoing language should be construed as alleging that Vaughn had completed his crossing of the track before he was hit by the train. It seems to us that it would be immaterial whether Vaughn was struck while he was on the track or just after stepping from it. Certainly, the petition could not be construed as alleging that he was struck after getting off the track and while walkinglongitudinally on or near the track. Furthermore, this court in the Vaughn case construed it as a "crossing" case. In distinguishing it from the Kennemer case, supra, it stated that Kennemer "was a trespasser on the railroad's property walking longitudinally along the track with his back to the train and there were noises which prevented his hearing the approach of the train." Furthermore, there are other distinctions between theVaughn case and the case at bar. The amended petition in theVaughn case alleged that "the engineer and the fireman on said engine knew of the use of said path crossing over said track by the public." The petition in the instant case did not allege that the decedent was walking in any pathway when struck by the train, and it did not allege that the engineer or fireman of the train had any knowledge that many or any persons were in the habit of walking on the track at the place (150 feet from the nearest crossing) where the decedent was struck and killed. The amended petition in the Vaughn case also alleged that the defendants were guilty of wilful and wanton negligence, while the defendants in the instant case were charged with simple negligence only.

The other cases cited in the motion are distinguished by their particular facts from the case at bar. Here, the petition alleged that the defendants were guilty of simple negligence only, and it appears on the face of the petition that the deceased was a trespasser on the railroad's property, and that neither the engineer nor the fireman saw him before he was struck by the train, and that (conceding that the defendants were guilty of simple negligence in not discovering the decedent before he was struck) the decedent, by merely turning his head, could have seen the train approaching from the rear and have stepped from the track and avoided the consequences to himself of the simple negligence of the defendants.

None of the grounds of the motion show cause for a rehearing of the case.

Rehearing denied. MacIntyre and Gardner, JJ., concur.