Pacetti v. Central of Georgia Railway Co.

64 S.E. 302, 6 Ga. App. 97, 1909 Ga. App. LEXIS 191

• Court: Court of Appeals of Georgia
• Decided: April 15, 1909
• Docket: 1660
• Status: Published

Opinion

Powell, J.

(After stating the foregoing facts.) Under the allegations of the petition, the plaintiff was on the-premises of the defendant as an invited guest, and the defendant owed her the duty of exercising toward her ordinary care and diligence to secure her safety. Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060); Civil Code, §3824; Rollestone v. Cassirer, 3 Ga. App. 161 (59 S. E. 442). The brief of the counsel for the defendant in error, and the opinion of the trial judge contained in the record, present the proposition that the petition is defective, in that the gateman’s knowledge of the presence of the plaintiff’s hand upon the gate is alleged in the alternative,' — -that "he knew or in the exercise of ordinary care should have known that the petitioner’s hand was upon the gate at the time the same was opened;” and that this allegation, under a familiar rule of construction, will be held to mean simply that it was the gateman’s duty to know and not that he actually did know. See Southern Bell Tel. Co. v. Starnes, 122 Ga. 604 (50 S. E. 343); Babcock Lumber Co. v. Johnson, 120 Ga. 1030 (48 S. E. 438). It is true that when a petition, in alleging the element of the knowledge of the defendant or his agent, as one of the ingredients of the negligence complained of, leaves it doubtful whether the knowledge was actual or constructive, the petition as a whole must set up such a state of facts as prima facie will show a duly (arising from the relationship existing between the parties as asserted, or from the particular circumstances surrounding the transaction) that the defendant dr his agent should have known. In other words, to state it differently, in that class of cases in which the duty of anticipation is normally absent, the plaintiff, in order to assert a valid cause of action, must state unequivocally that the defendant had actual knowledge, or else must set up such a state of facts and circumstances as would take the case out of the normal, and raise the duty where it otherwise would not exist. We think that the present petition does this. Normally, perhaps, a gatekeeper at a railway station would not be called upon to anticipate that any one standing near the gate would have his hands on it. But circumstances alter cases. Under the petition this was not a normal or ordinary occasion. A crowd of people were surging down the lobby toward the gate. The plaintiff in front of them was being pushed against the gate. The conduct of persons jostled about in a crowd is not usually the same as it would be under normal circumstances. Gatekeepers, guards, trainmen, and others whose movements are to be performed in the range of a crowd of people must of necessity use more caution than they would at other times. It is alleged that the plaintiff’s hand was upon the gate in plain view of the gateman. The plaintiff’s person was about to be crushed against the gate; and the crowd was pressing her on. It will not do to say that under such circumstances the gatekeeper acted prudently and without negligence in opening the gate without stopping to see whether he could do so without injury to the plaintiff or others who might be pressed up against it. If the allegations of the plaintiff’s petition be true (and, of course, on demurrer, their truth is admitted), the gateman’s conduct was not only negligent but it was reckless.

2. It is said, however, that the plaintiff’s cause of action fails because of her contributory negligence in placing her hand upon the gate. To our minds this is a more doubtful proposition than the one we have just discussed. It would seem that a person of ordinary intelligence and prudence would not place his hand upon a collapsible iron gate about to be opened, when the opening oi it would probably inflict injury upon the hand. As we have said above, however, the plaintiff was not acting under ordinary circumstances. It became necessary for her to throw out her hands, in order to keep her body from being crushed against the gate. We are unwilling to say as a matter of law that she went beyond the limits of common prudence in doing this. She may have reasonably believed that if she threw her hand upon the gate in plain view of the gateman, he would desist from his previously manifested purpose of opening the gate, until she had opportunity of extricating herself from the position in which the crush of the crowd had involved her. A person threatened with an imminent danger is not held to the same circumspection of conduct that he would be held to if he were acting without, the compulsion of the emergency. A person has a right to choose even a dangerous course, if that course seems the safest one under the circumstances. Our conclusion is that the question of the plaintiff’s contributory negligence is issuable, and, under the facts stated in the petition, it should be submitted to the jury.

3. As to the special demurrers: the first, which relates to the 8th paragraph of the petition, was not well taken. The facts alleged seem to support the conclusion asserted. The conclusion of the pleader is demurrable only when the facts -alleged do not support it. For a like reason, the sustaining of the second special demurrer was erroneous. We find no error in the court’s action in sustaining the fourth special demurrer. Judgment reversed.