Seaboard Air-Line Railway Co. v. Parriett

127 S.E. 815, 33 Ga. App. 576, 1925 Ga. App. LEXIS 608

• Court: Court of Appeals of Georgia
• Decided: March 4, 1925
• Docket: 16082
• Status: Published

Opinions

Broyles, C. J.

1. This was an action against the railway company for personal injuries. The petition as amended set out a cause of action, and the court properly overruled the general demurrer interposed.

2. While there were material conflicts in the evidence, the jury were authorized, under the pleadings and- the evidence, to find as follows: The plaintiff, while walking within the corporate limits of the city of Athens, between the main-line track and a passing 'track of the-defendant, along' a smooth walk or path provided by the defendant (which walk was so frequently used by the public, with the knowledge and consent of the defendant, that it ivas the duty of the defendant to have anticipated her presence at that time and place), was ’ struck and severely injured by a passenger-train of the defendant, which was running on the main track at a high and dangerous rate of speed, and in violation of a city ordinance which required it to come to a full stop within fifty feet of Pulaski street; that the plaintiff, while walking between the tracks as aforesaid and before she was struck, observed a freight-train approaching her, which was moving over the passing track and making a very loud noise, and that, to escape being struck by that train, she stepp'ed away from it and towards the main track, and continued walking between the main track and the passing track until she was struck by the passenger-train, which approached her from her rear; that she was so engrossed in watching the moving freight-train and by the noise it made, and in keeping a safe distance from it, that she was not aware of the approach of the passenger-train until it struck her; that the place where the injury occurred was not within the switch-yard proper of the defendant; that the passenger-train was running at such a high rate of speed that the plaintiff, although the engineer of the train applied the emergency brakes as soon as her presence was discovered, was dragged by the train, after she was struck, a distance of 240 feet, and that this rate of speed, at the time and place of the injury, constituted negligence on the part of the defendant’s employees who were operating the train; that at the time of her injury the plaintiff was in the exercise of ordinary care, and that the defendant’s employees, operating the train, were guilty of a lack of such care. See, in this connection, Tice v. Central of Georgia Ry. Co., 25 Ga. App. 347 (1 f, 2 b-c-d), and citations; Pope v. Seaboard Air-Line Ry., 21 Ga. App. 251 (1), and citations; Atlantic Coast Line R. Co. v. Adams, 7 Ga. App. 146 (1), (2); Crawford v. Southern Ry. Co., 106 Ga. 870, 877; Southern Ry. Co. v. Chatman, 124 Ga. 1026 (5); Atlantic Coast Line R. Co. v. Burroughs, 20 Ga. App. 197 (2); Williams v. Southern Ry. Co., 11 Ga. App. 305 (1, 2, 3); Seaboard Air-Line Ry. Co. v. Deal, 20 Ga. App. 246 (1); Western & Atlantic R. Co. v. Jarrett, 22 Ga. App. 314 (4); Binion v. Central of Ga. Ry. Co., 12 Ga. App. 663, and authorities cited; Central of Ga. Ry. Co. v. Thompson, 25 Ga. App. 715 (1); Kendrick v. Seaboard Air-Line Ry., 121 Ga. 775, 777; Western & Atlantic R. Co. v. Bailey, 105 Ga. 100; Southern Ry. Co. v. Brock, 132 Ga. 858 (9); Central Railroad v. Brinson, 70 Ga. 207 (2); Georgia Railroad v. Williams, 74 Ga. 723 (1).

Decided March 4, 1925. Rehearing denied April 21, 1925.

3. Under the immediately preceding ruling and all the facts of the case, the verdict in favor of the plaintiff was authorized by the law and the evidence, and the court did not err in overruling the motion for a new trial, which was based upon the usual general grounds only.

Judgment affirmed.

Luke and Bloodworth, JJ., concur. John B. Gamble, Erwin, Erwin & Nix, for plaintiff in error. L. C. Bucher, J. T'F. Arnold, Joel & Elliott, Dorsey Davis, contra.