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BAILEY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY; and vice versa.
43027.
43040.
Action for damages. Fulton Superior Court. Before Judge Pharr.
PANNELL, Judge.
1. "A railroad company is bound to exercise extraordinary diligence toward a passenger while he is in the act of alighting from the train. Southern Ry. Co. v. Reeves, 116 Ga. 743 (4) (42 SE 1015). The liability of a carrier of passengers begins at the starting point, and does not end until the passenger is discharged. Brunswick & Western R. Co. v. Moore, 101 Ga. 684 (28 SE 1000). It is the duty of a railroad company to provide at its stations suitable, sufficient, and reasonably safe means to enable passengers to alight from cars without danger. Daniels v. W. & A. R. Co., 96 Ga. 786 (22 SE 956); Mize v. Southern Ry. Co., 15 Ga. App. 265 (82 SE 925); Central R. Co. v. Thompson, 76 Ga. 770. See also Central R. &c. Co. v. Perry, 58 Ga. 461 (3); Central R. Co. v. Whitehead, 74 Ga. 441; Atlanta &c. R. Co. v. Bates, 103 Ga. 333 (2), 347 (30 SE 41); Wilkes v. W. & A. Railroad Co., 109 Ga. 794 (35 SE 165). When, upon a train coming to a stop at the plaintiff's destination, the conductor called, 'All out for Atlanta,' this indicated that the conductor was ready for the plaintiff to disembark from the car, and she had a right to assume that a safe place for her to alight had been furnished by the defendants. Central R. Co. v. Thompson, supra." Metts v. Louisvile & N. R. Co., 52 Ga. App. 115, 116 (182 SE 531).
2. Ordinarily there's no duty upon a carrier to assist a passenger in boarding or alighting from its train. Western & A. R. Co. v. Earwood, 104 Ga. 127 (29 SE 913); Southern R. Co. v. Reeves, 116 Ga. 743, supra; Southern R. Co. v. Hobbs, 118 Ga. 227 (45 SE 23, 63 LRA 68); Tucker v. Central of Ga. R. Co., 122 Ga. 387 (50 SE 128); Central of Ga. R. Co. v. Madden, 135 Ga. 205 (69 SE 165, 31 LRA (NS) 813, 21 AC 1077); Ga. & Fla. R. v. Thigpen, 141 Ga. 90 (80 SE 626); Southern R. Co. v. Wright, 6 Ga. App. 172 (64 SE 703); Mize v. Southern R. Co., 15 Ga. App. 265, supra.
"Whether in a given case the circumstances are such as to suggest the necessity of assisting a passenger to board or alight from a train or car is a question to be determined by the jury. Southern Ry. Co. v. Reeves, supra; Southern Ry. Co. v. Wright, supra; Southern Ry. Co. v. Crabb, 10 Ga. App. 559 (73 SE 859); Central of Ga. Ry. Co. v. Madden, supra; Ga. R. &c. Co. v. Rives, 137 Ga. 376 (73 SE 645, 38 LRA (NS) 564).
"Where the means afforded for hoarding or alighting are inadequate or unsafe, the carrier is bound to assist passengers in hoarding or alighting. 55 ALR 398, note Mize v. Southern R. Co., supra." Metts v. Louisville & N. R. Co., 52 Ga. App. 115, 117, supra.
3. "Ordinarily questions of negligence and diligence are for determination by the jury under the laws of this State. Southern Ry. Co. v. Slaton, 41 Ga. App. 759 (3) (154 SE 718); Brown v. Savannah Electric Co., 46 Ga. App. 393 (167 SE 773). Under the allegations in the petition a sufficient case was made for submission to the jury. The court erred in sustaining the general demurrer and dismissing the action." Metts v. Louisville & N. R. Co., 52 Ga. App. 115, 118, supra.
4. In our opinion the case of Metts v. Louisville & N. R. Co., 52 Ga. App. 115, supra, from which the above excerpts were taken controls the present case as to the rulings on demurrers to the petition. While, as shown by the statement of the pleadings, it appears that there are some differences, we do not think that these differences are of sufficient materiality to call for a different ruling. It appears in the Metts case that the distance from the last step of the train to the platform was 3 feet, as compared with 15 inches in the present case. It was also alleged in the Metts case that the distance from the last step of the train to the station platform "was too great to be reached in safety by one making an ordinary step or stride." In the present case there is no such allegation but it is alleged in the present case that "by reason of the distance involved" from the bottom step of the train to the platform of the station "the weight of" plaintiff's "body shifted . . . causing her to trip and fall." We cannot say as a matter of law that a distance of 15 inches from the last step of the train to the platform was not a sufficient distance to suggest the necessity of assisting a passenger to alight from the train and whether it was sufficient or insufficient is a matter for determination by the jury. The trial court erred in sustaining the general demurrer to the petition.
5. The trial court erred in sustaining the demurrer to the plea of res judicata interposed by the defendant to plaintiff's petition.
Mrs. Emma (John H.) Bailey brought an action against the Louisville & Nashville Railroad Company seeking to recover damages for breach of contract of carriage entered into in Atlanta, Ga., the injuries occurring when petitioner alighted from one of the defendant's trains. The petition alleged that the train arrived at the New Orleans Union Passenger Terminal Station and stopped for the purpose of discharging passengers pursuant to an announcement made by the conductor. The allegations, insofar as here material, were as follows: "8. That after said train came to a stop, as aforesaid, your petitioner and her said daughter, preceded by other passengers, made their way to the vestibule of the coach in which they had been riding for the purpose of descending the steps of said train and alighting therefrom.
The allegations of negligence were as follows: "In failing to provide a conductor, porter, or other servant of the defendant to assist your petitioner in alighting from said train at said time and place" and "In failing to provide your petitioner with reasonable facilities to make it safe for her to alight at said time and place" and "In failing to provide a stool, pedestal or other safety facility or devise [sic] to assist her in alighting from said train," "In failing to provide sufficient personnel in order to anticipate and prevent the occurrence of such an accident" and "The failure of defendant's said conductor and porter at said time and place to observe said alighting conditions and to apprize your petitioner thereof and to provide a stool or pedestal to enable her to alight safely from defendant's said train." Plaintiff-appellant contends that her petition met the requirements of Metts v. Louisville & N. R. Co., 52 Ga. App. 115, supra. The material allegations in the Metts case are shown in paragraphs 4 and 5 of the petition in that case, as follows: "4. That upon reaching the front platform of the coach and relying upon the presumption that the defendant companies, by and through their agents and employees, would furnish her and her two children a safe place in which to alight, she undertook to leave the platform of the coach with a three-year-old child, and in stepping from the last step of the platform of the coach leading to the floor or landing, sustaining the injuries hereinafter shown. That when she started down the steps leading from the platform to the landing, she did not know the distance from the last step to the landing, and did not discover that the distance from the last step to the landing was too great to be reached in safety by one making an ordinary step or stride and did not know that there was no stepping stool or other safe guard incident to and necessary to a safe landing were absent. Your petitioner shows that the distance, as afterwards found out by her, from the last step leading from the platform of the coach in which she took passage, was about three feet to the floor or landing, and as she with her minor child stepped from the last step, she found herself stepping into mid-air, and having lost her balance, she plunged with great force to the floor, or landing.
"That the defendant companies did not have at said landing a foot stool or other appliance to furnish petitioner a safe landing, and did not provide petitioner any employee or agent to assist her and her minor child in making a safe exit from the coach then and there in the control of the defendant company.
"5. That the defendant companies owed petitioner a duty of providing her with a safe place in which to alight from the car, and that it was chargeable with notice of the distance that was then and there present, from the last step of the platform of the coach to the landing, and, in failing to have some person to assist petitioner in making a safe landing and in the failure to have at the bottom of the steps, leading from the platform of the coach to the landing, a foot stool, or stepping stool at the time at which petitioner undertook to make her exit from the coach under the facts and circumstances herein set forth, was negligence."
The trial court sustained the defendant's general demurrer to the petition and dismissed it. The plaintiff appeals complaining of the sustaining of the general demurrer to her petition; the defendant filed a cross appeal complaining of the sustaining of plaintiff's demurrer to the defendant's plea of res judicata.
Headnotes 1, 2, 3 and 4 do not require any elaboration. Only Headnote 5 will be discussed.
The plea of res judicata discloses that the plaintiff here filed suit on the same cause of action, but based on the tort, against the defendant here and the New Orleans Union Passenger Terminal Station in the courts of the State of Louisiana, and, that pursuant to the laws of the State of Louisiana, the action was dismissed "with prejudice," which dismissal, because of statutory provisions and court interpretations thereon, also pleaded, made such a judgment of dismissal "with prejudice" after time for appeal elapsed a judgment on the merits sufficient to support a plea of res judicata. We have similar provisions under our new Civil Practice Act (Section 41 (b), Ga. L. 1965, pp. 609, 653) which Act, however, is not applicable to the present case. The plaintiff contends that, since there was no actual determination of the merits of the case in Louisiana, such dismissal cannot support a plea of res judicata to a suit filed in this state.
"The judgment of a court of one State, when sued on, pleaded, or introduced in evidence in another State, is entitled to receive the same full faith, credit, and respect that is accorded to it in the State where rendered. If it is valid and conclusive there, it is so in all other States. Tompkins v. Cooper, 97 Ga. 631 (25 SE 247); Thomas v. Morrisett, 76 Ga. 385. Therefore, a judgment rendered by a competent court of another State is conclusive on the merits in the courts of this State when made the basis of an action or defense, and the merits can not be reinvestigated. Hope v. Walsenburg First National Bank, 142 Ga. 310 (82 SE 929); Spann v. Edwards, 139 Ga. 715 (77 SE 1128); McCaufry v. Hargroves, 48 Ga. 50 (50 AR 660)." Dyal v. Dyal, 65 Ga. App. 359, 364 (16 SE2d 53). " 'Full Faith and Credit,' as that term is used in Art. IV, Sec. I of the Constitution, means that a judgment in one State must be given in any other State the full effect it is given by law in the State of its origin." Peeples v. Peeples, 103 Ga. App. 462 (2a) (119 SE2d 710). See also Settle v. Alison, 8 Ga. 201 (1) (52 AD 393). Under these decisions, and the constitutional provision interpreted, we are compelled to hold that the plea of res judicata was sufficient as against the demurrer urging that the judgment pleaded was not a judgment upon the merits. Code 3-607, 110-501. The case of Brown v. Bullock, 17 A. D. 2d 424 (235 NYS2d 837), relied on by the plaintiff, does not require a different ruling, even if we were bound to follow it. In that case the court was interpreting one of its own orders dismissing a case "with prejudice" and construed it as not passing on the merits and therefore not being available in support of a plea of res judicata to a suit pending in federal court, and so indicating its intention. Here we have a case where an express statute is involved, construed by the courts of that state (Louisiana) as determining that such an order was one upon "the merits." The trial court, therefore, erred in sustaining the demurrer to the plea of res judicata.
Hansell, Post, Brandon & Dorsey, Dent Acree, for appellee.
John I. Kelley, Foster & Fudge, for appellant.
SUBMITTED SEPTEMBER 8, 1967 -- DECIDED JANUARY 26, 1968 -- REHEARING DENIED FEBRUARY 9, 1968 -- CERT. APPLIED FOR.
Friday May 22 18:16 EDT


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