Johns v. Georgia Railway & Electric Co. , 133 Ga. 525 ( 1909 )

Lumpkin, J.

(After stating the foregoing facts.) With full knowledge of the physical condition of the street in front of her house, the plaintiff voluntarily caused the conductor of the street car to stop in there, in order that she might alight. The place of stopping was not his selection; it was hers. There was no emergency compelling her to get off there, except a desire to avoid walking a block or two, if she should get off where those conditions did not exist. The conductor did not command her to leave the car or inform her that it was safe to do so. When she started toward the rear platform, beside which paving stones were piled along the street, he told her to go to the front. This was rather a warning than a command to leave the car. It was in the daytime, and the situation was plainly visible. Her daughter immediately preceded her, and alighted in safety by stepping down into the depression or “hole” caused by the removal of the paving stones from a strip of the street alongside the track for the purpose of building an additional track, and then stepping up on the pavement on the other side. There was no contention that the plaintiff did not see the entire condition of affairs. On the contrary she evidently did so, and she testified that she could not step down into the opening, and attempted to step across it, a distance which she described as a somewhat long step. The conductor, who was inside the car, had nothing to do with this decision or the effort to carry it out. ■ When she attempted to step from the car across the opening in the pavement, she placed her foot on a paving stone or dirt, which gave way and she was hurt. She took the chance of being able to make the long step successfully, and she failed to do so in safety. Even if the defendant was not altogether faultless, nevertheless she can not recover for the results of her own conduct, with full knowledge and in full view of tbe situation. Her injury was unfortunate, but she has no right to recover from the defendant. This case is not like those involving concealed danger or dangerous places known to the company and not to the passenger, or where a passenger was ordered or forced to leave a car, or where there was a defect in a street or sidewalk, which may have been previously known to a passer, but of the proximity or danger of which, by reason of darkness or other cause at the time of the injury, he was not aware. It is more like the case of Sheats v. City of Rome, 92 Ga. 535 (17 S. E. 922), where, although a city was negligent, after causing a ditch to be dug across a sidewalk, in leaving it open, a woman, who was aware of its existence, width, and depth, and who undertook to jump across it, or stepped into it on a rock and tried to step out, and was thus injured, was held to have no right to recover. In the case before us the plaintiff was aware at the time of leaving the car of the condition of the street. The distinction between the two classes of cases is referred to in Macon Ry. Co. v. Vining, 120 Ga. 511, 513 (48 S. E. 232). See also Blodgett v. Bartlett, 50 Ga. 353; Barnett v. East Tenn., Va. & Ga. Ry. Co., 87 Ga. 766 (13 S. E. 904); East and West R. Co. v. Waldrop, 114 Ga. 289 (40 S. E. 268). The nonsuit was properly granted.

Judgment affirmed.

All the Justices concur.