Hill v. Louisville & Nashville Railroad

Fish, C. J.

By reference to the petition it will be seen that the allegations of negligence, briefly stated, were: (1) That it was the custom of the defendants to allow persons to enter the ears, in order to assist passengers boarding the train, and,'before starting the train, to give certain signals for such persons to get -off, but on this occasion none of the usual signals 'was given, and before Amaker, who, in assisting his sister-in-law and her children with their bundles, had entered the car, could deposit the bundles, and while he was standing in the aisle of the car, the train started off slowly, it not having stopped a reasonable length of time for him to render such assistance and leave the car in safety; (2) That upon the starting of the train he rushed out of the door, on to the platform and down the steps of the car, to alight therefrom, and, while in the act. of alighting with due caution, a sudden lurch or jerk of the train threw him to the ground, causing the injuries from which he died. Assuming, as we must in passing on the sufficiency of the petition to withstand the demurrer thereto, all the allegations of negligence on the part of the defendants to be true, we are clearly of opinion that no cause of action was set forth. ' Im Simmons v. Seaboard Air-Line Railway, 120 Ga. 225 , it was held: “1. If with a clear chance to avoid the consequences of defendant’s negligence or breach of duty the' plaintiff voluntarily assumes the risk occasioned thereby, such conduct on his. part is not merely contributory negligence, lessening the amount of damages, but a failure to avoid danger, defeating the right to recover. 2. The fact that in stepping froip a moving train the plaintiff may not have- been .guilty.of negli *246 gence defeating- bis right to recover does not entitle him to a verdict;, unless it also appears that the carrier was at the time guilty of negligence which was the proximate cause of the plaintiff’s injury.” As was said by Mr. Justice Lamar in rendering the opinion in that case, it is ordinarily a question for the jury to determine whether it is negligence, barring a recovery, for a passenger to step from a moving train; and a number of cases were cited wherein this court decided such conduct did not prevent a recovery, when the passenger was injured as the result of a sudden and negligent jerk of the train while he was in the act of alighting. “But in all these cases it will be seen that the mere fact that the passenger may not have been guilty of negligence was not the basis of his right to recover. Even if he was free from fault in stepping from the moving train, that did not make the company liable. It had also to appear that the carrier was guilty of negligence, and that negligence must have been shown to be the cause — the proximate cause of the injury. Hardwiclc v. Georgia R. Co., 85 Ga. 509 .” The negligence of the defendants,' in the case now under consideration, was the starting of the train too soon and without giving the usual signals. After such negligence came into existence and after Amaker was fully aware of it, he, rather than to go back into the car and rely on his right of action, if any he had, for proximate damages resulting to him from such negligence (Simmons v. Seaboard Air-Line Ry., supra), voluntarily took the risk of alighting from the moving train. The petition alleged that Amaker assisted Mrs. Attaway, his sister-in-law, and her children, with their bundles, in boarding the train at the usual place for passengers to get on; “that there were a number of passengers to get off, and a number to board the cars;' that neither the conductor of said train nor any of the employees thereof appeared to assist Mrs. Attaway and her children to board the same, although the conductor, flagman, and other employees saw them, or could have seen them, in the act of boarding the cars and after they entered the cars.” Even if from these allegations it could be legitimately inferred’ that the conductor or any employee of the defendants knew that Amaker had boarded the train, there was certainly nothing in the petition to show that the conductor, or any other employee of the defendants, knew that he got aboard merely to assist his relative and her children, and that he did not intend to accompany thqm on their journey. No employee of the defendants *247 knew, so far as the petition shows, of Amaker’s intention or of his attempt to alight, and therefore no opportunity was given clefend-ants’ employees, by skillful handling of the locomotive and train, to guard against a sudden jerk as be was in the.act of alighting. The jerk was not alleged to be negligent; and he was bound to anticipate the usual 'jerks incident to the running of the train. Granting that the defendants owed Amaker the duty of stopping the train a reasonable length of time for him to assist his relatives in boarding it and securing seats or depositing their bundles and for him to then alight, and that they owed him the further duty of giving the usual signals to alight, and that they failed to perform such duties, it is clear that their negligence in these respects was not the proximate cause of his injuries. He knew of such prior negligence of the defendants, and had full opportunity to escape its consequences. With such clear chance, he chose not to avoid, but to risk, the danger of alighting from the moving train, and, as was said in Simmons v. Seaboard Air-Line Railway Co., supra, “This was not contributory negligence lessening the damages, but the failure to avoid a known danger which defeats [a] right to recover” for his death. That the plaintiff was not entitled to recover on the allegations of the petition, see Coleman v. Georgia Railroad & Banking Co., 84 Ga. 1 , and McLarin v. Atlanta & West Point R. Co., 85 Ga. 504 . In this connection, see also Meeks v. Atlantic & Birmingham R. Co., 122 Ga. 266 . In Suber v. Georgia, Carolina & Northern Ry. Co., 96 Ga. 42 , relied on by counsel for plaintiff in error, it appeared that the conductor of the train knew of Suber’s intention to assist his relatives in boarding the train and that he did not intend to become a passenger.

2. Counsel for plaintiff in error contended that as the case involved the question of negligence, the judge should have submitted it to the jury and it was error for him to decide the question. It is the duty of the trial judge to pass upon the sufficiency of the facts alleged in a petition, to show a cause of action in the plaintiff’s favor, when tliis question is raised by demurrer, although the case be one wherein the plaintiff seeks to recover damages alleged to have been sustained in consequence of the defendant’s negligence. Jarrett v. Atlanta & West Point R. Co., 83 Ga. 347 .

Judgment affirmed.

All the Justices concur.