1. The petition set forth a cause of action, and the trial court did not err in overruling the general demurrer thereto.
2. There is no merit in any of the special demurrers.
2. The defendant, together with other public carriers, maintains and operates a terminal station at Albany, Georgia, having multiple tracks.
3. On April 18, 1955, the plaintiff entered the terminal station and purchased, from an agent of the defendant, a ticket for his transportation as a passenger upon one of the defendant's trains from Albany to Macon, Georgia.
4. At the time the plaintiff purchased this ticket, he informed the defendant's ticket agent that he was wholly ignorant concerning transportation by rail; that he had never before had occasion to board a railroad train as a passenger, whereupon he was advised by the agent that he should go to the track in the station where he would be assisted in properly boarding the train.
5. The plaintiff says that the ticket was purchased and these instructions given to him by the agent about 4 o'clock in the afternoon and he was instructed to be available for boarding the train which was scheduled to leave the station around 3:10 of the following morning. The plaintiff lounged around in and out of the terminal station, sleeping some on the seats in the waiting room provided for passengers, and at about 2:30 a.m. he went, according to the directions and instructions of the ticket agent, to the railroad track farthest removed from the ticket office and stood there in the loading area until the train came in.
6. The plaintiff remained at the place where he was instructed to stand, which was the seventh track removed from the railroad ticket office. The place where the plaintiff was standing was not elevated from the tracks, but was on a level with the fifth, sixth and seventh tracks, and was covered with grass. The train came into the station going north on the fifth track instead of on the seventh track, as the defendant's ticket agent, acting within the scope of his employment, had stated it would. The plaintiff walked over the seventh and sixth tracks to the east side of the fifth track where the train and its coaches were stopped. Although there were doors and steps to enter on the east side of the train, no one appeared on the scene to open them. The plaintiff saw an employee and agent of the defendant with a railroad uniform cap on and this individual was on the same side (the east side) of the train as the plaintiff, and north of the plaintiff. The plaintiff walked up to where the defendant's employee was standing and told him that he was going to Macon, Georgia, asking if this was the train to get on. This employee told the plaintiff to "go back where you were waiting and we will put you on it." He further said "We've got some switching and changing to do around here."
7. The plaintiff walked back to where he was standing, an area which was covered with grass on a level with the tracks which was several feet east of the train which was on the fifth track. After a short period of time, the train commenced to move out in a northerly direction. At no time prior to its moving out was the plaintiff afforded any notice or warning that the train was about to move by an "all aboard" signal, by whistle, or any audible signal, nor were any doors opened to permit his entrance. As the coach which had been parked in front of the plaintiff and which was lighted inside and had passengers therein, commenced passing, the plaintiff started waving and hollering at the people, or any employee of the defendant in the coach, in an attempt to attract someone's attention to open the doors. The plaintiff, thinking that he might be able to attract someone's attention by knocking on the coach door, commenced to run slowly with his bag in his right hand, at the same time hollering and waving. After running a short distance, between 10 and 15 feet, while still in the loading area, the plaintiff tripped over a metal box which was embedded in the ground and protruded about three inches above the ground. The box is an encasement for certain railroad piping. This box was just east of the fifth track and was used and maintained by all railroads of the terminal in their operations. The box was covered with grass, and although there were lights shining out of the coach on the ground where the plaintiff was running, the box was not visible to the plaintiff or anyone else in the exercise of ordinary care and diligence.
8. Upon tripping, as aforesaid, the plaintiff fell to the ground beside the train and his left hand fell onto the track where it was run over by a wheel of the defendant's train, which was traveling at a speed of approximately three or four miles per hour, severing a portion of his hand, together with all of his fingers except his forefinger and his thumb.
9. The train came in approximately 15 minutes before the plaintiff was injured. (The necessary switching consumed approximately 10 minutes.) 10. The plaintiff says that at the time he attempted to board the train, as aforesaid, he was acting under the compulsion of having to return to Fort Jackson, South Carolina, where he was stationed as a member of the United States Armed Forces which he had entered on December 7, 1954. His leave had expired at midnight, April 18, 1955, and the train which he endeavored to board was his last chance for his immediate return, and the ticket agent was fully advised and knew of this situation.
11. The plaintiff feared the consequences of overstaying his military leave and of being absent without leave from his military base, when he, in desperation, undertook to attract the attention of someone inside of the train to admit him. Therefore, the plaintiff says he was acting upon the occasion in a sudden emergency and the acts of negligence on the part of the defendant created the emergency, and that his conduct in attempting to board the moving train should be measured and evaluated on the basis of his having acted in an emergency.
12. If the defendant railroad company's servants, agents and employees had given the plaintiff proper instructions with reference to the place where, and the manner in which, the train could have been properly boarded, he would not have been on the wrong side (the east side) of the train at the time it started to move out of the station in the direction of Macon. Therefore, the defendant failed in its duty to afford him safe entry upon the train and transportation to Macon, Georgia, pursuant to the terms of the ticket which he had purchased from the authorized agent of the company which provided for such transportation.
13. The plaintiff was taken to a private hospital in Albany, Georgia, where he remained approximately 45 minutes without any sedatives to ease his pain, and was thereafter taken by ambulance to Turner Air Force Base Hospital where he received first aid treatment and was then carried to the United States Army Hospital at Ft. Benning, Georgia, where he received surgical and medical treatment for his injuries.
14. At the time of his injuries, the plaintiff was in good physical condition and health, and had a life expectancy of 40.75 years. The plaintiff was reared on a farm in Worth County, Georgia, and his only education was the completion of the eighth grade.
15. The plaintiff was at the time of his injuries an enlisted man in the United States Army, a private in the Infantry, stationed at Fort Jackson, South Carolina, and his only training was that of the usual work involved in a small farm operation, at which he could have earned $50 per week.
16. The plaintiff has suffered extreme physical pain and anguish as a result of these injuries and continues to suffer both physical and mental pain and anxiety on account of his deformity; his injuries are permanent and will continue the rest of his life and his capacity for labor has been impaired at least 40 percent. For such permanent disability and pain and suffering which he has had and will continue to endure, the defendant is indebted to the plaintiff in the sum of $65,000.
17. The plaintiff's enumerated injuries were occasioned solely and proximately on account of the negligence of the defendant, its agents, servants and employees, acting within the scope of their employment as follows:
(a) In failing to provide appropriate instructions and directions for his safely boarding the train;
(b) The defendant, its agents, servants and employees were aware of his ignorance with respect to boarding a railroad train and failed to supervise him properly and to give him proper directions with reference thereto;
(c) They were further negligent, being aware that he was not in the proper place required for his entry upon the train, in not instructing him and directing him to the proper place or station for boarding the train;
(d) In failing, after having sold him a ticket for such transportation, to properly supervise his safely boarding the appropriate train for his transportation according to the terms of the ticket which he had purchased;
(e) In failing to advise the plaintiff the proper place to board the train;
(f) In failing to open the doors on the east side of the train, in view of the fact that the defendant had actual notice of the plaintiff's (a passenger's) presence and his destination;
(g) In failing to give the plaintiff some audible signal or warning that the train was preparing to move out, whereby the plaintiff would have had time to attract someone's attention and enable them to open the door to the railroad car before the train pulled out; (h) In failing to afford the plaintiff a reasonably safe entry upon the train as in the exercise of the degree of care owed to the plaintiff as a passenger, it was required to do;
(i) In failing to have an employee on the east side of the train to open the door for the plaintiff.
18. The plaintiff had never been in a railroad terminal yard and was totally ignorant and unfamiliar with the operation of trains, and the defendant, having such knowledge of the plaintiff's ignorance could reasonably foresee the consequences that ensued upon the occasion herein described.
The defendant demurred generally and specially upon the following grounds:
"1. Said amendment sets forth no cause of action against this defendant.
"2. The allegations of the amendment fail to show a breach of any duty of the defendant to the plaintiff, in connection with the act in which he is alleged to have been injured, and show that his act was voluntary, in which he assumed all the risk.
"3. The facts alleged in the amendment show that whatever injury plaintiff suffered was due to a rash and imprudent act.
"4. There is no causal relation between the alleged acts of negligence and the cause of the plaintiff's alleged injury.
"5. Defendant did not owe plaintiff a duty to warn him against danger in trying to get aboard a moving train.
"6. The allegations in the amendment show that the plaintiff was physically and mentally in good health and capable of getting on a train without assistance, and, defendant did not owe him any duty to assist him in getting on the train.
"7. The alleged acts of negligence were known to plaintiff prior to his attempt to catch a moving train and therefore, he assumed the risk and danger of doing so and failed to exercise ordinary care, to avoid the consequence of the alleged negligence of the defendant.
"8. Defendant did not owe plaintiff any duty to provide means by which he could board the train while it was in motion.
"9. There was no duty on the part of the defendant to keep the tracks clear for pursuers of a moving train.
"10. Allegations in amendment show that the doors on the side on which plaintiff attempted to catch the moving train were closed which was notice to plaintiff of the danger and was tantamount to a withdrawal of any invitation to plaintiff to get aboard said moving train.
"11. No authority is shown in the alleged employees of defendant that the alleged promise made to plaintiff was binding on defendant.
"12. Under the allegations in the amendment if plaintiff has any cause of action it is for breach of contract and not for a tort.
"13. Under the facts alleged in the amendment no emergency was created by any act of the defendant that imperiled or endangered the life or safety of plaintiff's person, and said facts alleged show that plaintiff voluntarily attempted a rash and imprudent act.
"14. Every act of alleged negligence on the part of the defendant was known to plaintiff prior to attempting to board the moving train and therefore, he failed to exercise ordinary care.
"15. Defendant demurs especially to paragraph 4 wherein it is alleged 'he was advised by the agent that he should go to the last track in the station where he would be assisted in properly boarding the train' for the reason that said statement, if made, was beyond the scope of the alleged agent's authority and was a mere effort to extend a courtesy to plaintiff and did not place any obligation or duty upon the defendant.
"16. Defendant demurs especially to paragraph 5, except that part of said paragraph wherein it is alleged petitioner says that ticket was purchased for the reason that the remainder of said paragraph is irrelevant and immaterial and illustrates no issue in this case.
"The amendment shows that regardless of whatever information he might have received in reference to what track the train would come in on he was put on notice that the train actually came in on the 5th track instead of the 7th track, and was further put on notice that none of the doors on the east side of the train were opened.
"18. Defendant demurs especially to that part of paragraph 7 wherein it is alleged that 'At no time prior to its moving out was your petitioner afforded any notice or warning that said train was about to move, by an "All Aboard" signal, by whistle, or any audible signal, nor were any door or doors opened to permit his entrance thereon.' for the reason that there was no duty on the part of the defendant railroad to give plaintiff special notice and the only duty upon the part of the railroad was to afford those who presented themselves at the proper time and place a safe place to get aboard the train.
"19. Defendant demurs especially to paragraph 10 for the reason that same is irrelevant, immaterial and illustrates no issue in the case and does not allege any facts which show any emergency existed that would justify plaintiff's conduct, and further demurs to that part of said paragraph 10 wherein it is alleged 'the said ticket agent was fully advised, and knew of this situation' for the reason that same is a pure conclusion of the pleader and no facts are alleged in said petition to support said conclusion and for the further reason that if said ticket agent knew of this situation said knowledge would not impose any duty or obligation on the part of the defendant.
"20. Defendant demurs especially to paragraph 11 for the reason that same is irrelevant, immaterial and illustrates no issue in the case and does not allege any facts which show any emergency existed that would justify plaintiff's conduct.
"21. Defendant demurs especially to that part of paragraph 12 wherein it is alleged 'Therefore, petitioner says that the defendant failed in its duty to afford him a safe entry upon the train' for the reason that in said paragraph it is alleged that had plaintiff been on the proper side of the train, to wit: the west side, which was the place that passengers would get on or off the train, plaintiff could have safely boarded the train. The defendant did not owe plaintiff any duty to open its doors or permit him to enter the train of the east side of same where it was not the custom or practice of the railroad to receive passengers.
"22. Defendant demurs to paragraph 17 and each and every subsection thereof, for the reason that said paragraph and subsections thereof, do not allege any grounds of negligence which would constitute a right or cause of action against the defendant. Demurs especially to that part of paragraph 17 wherein it is alleged 'defendant, its agent, servants and employees, acting within the scope of their employment' for the reason same is a conclusion of the pleader and no facts are alleged upon which to base said conclusion."
The defendant assigns error upon the trial court's overruling these demurrers upon each and every ground.
1. Under the rules for properly pleading the agency relationship between a corporation and its employees, which have been so cogently stated by MacIntyre, P. J., in Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324
(58 S. E. 2d 559), the petition was, upon this point, sufficient as against demurrer, either general or special. There are in the petition simple direct statements of fact in the nature of express general averments that the negligent acts of the employees of the defendant here in question were committed in the prosecution of the defendant's business and within the scope of their authority. These allegations must, as against demurrer, be taken to be true. Code 81-304. There is nothing in Wright v. Ga. R. & Bkg. Co., 34 Ga. 330 (3)
contrary to the present ruling. The statements made by the brakeman in that case were shown upon the trial on the case not to come within the scope of his authority.
It is axiomatic that questions as to diligence and negligence including contributory negligence and proximate cause are peculiarly for the determination of a jury and the court will not solve them on demurrer, except in plain and indisputable cases. International Cotton Mills v. Carroll, 22 Ga. App. 26 (95 S. E. 472); Hodges v. Atlanta Gas Light Co., 75 Ga. App. 105 (42 S. E. 2d 244).
It is equally axiomatic that a pleading is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties (McEntire v. Pangle, 197 Ga. 414, 29 S. E. 2d 503); but where the allegations of a petition, viewed as a whole, are not inconsistent with the pleader's right of recovery and contrary inferences cannot fairly be drawn, the allegations of the petition must be taken as true on demurrer.
Under a proper construction of the petition, the plaintiff does not allege that he was endeavoring to board the train or to climb upon it while it was in motion. He alleges that he ran along beside the train for a distance of between 10 and 15 feet within the loading area waving and hollering and knocking upon the coach door in an effort to attract the attention of those in charge of the train so as to gain admittance. While in paragraph 9 of the petition he does use the expressions "at the time he attempted to board the train," and "the train which he endeavored to board," these expressions are descriptive of the time in question and the train in question and not inconsistent with his allegations that he was endeavoring to attract the attention of someone inside the train to admit him. We cannot agree, therefore, with the defendant that the petition shows the plaintiff to be attempting to board the moving train, nor do we agree that his action in running along beside the moving train was so obviously dangerous and perilous, as, under the doctrine of assumption of risk, to prevent his recovery.
There is no question of assumption of risk involved in this case. As we all know, the doctrine of assumption of risk really grew out of the master-servant relationship; but, be that as it may, assumption of risk presupposes a knowledge, at some time before the actual injury sustained, of the danger assumed. Smith v. American Oil Co., 77 Ga. App. 463 (49 S. E. 2d 90); S. C. Jones Co. v. Yawn, 54 Ga. App. 826 (188 S. E. 603). To run along beside a train within the loading area of a railway terminal in order to attract the attention of those in charge of the train is not as a matter of law negligence or so dangerous that it can be said that the plaintiff in doing so assumed the risk of being injured thereby. The danger consisted of the plaintiff's stumbling over the concealed encasement box. In so far as it appears from the petition, the object which caused the plaintiff to fall was the encasement box located within the loading area and concealed by grass. He had no knowledge of its presence, but since the box was used by the defendant in its operations, the defendant was chargeable with notice of its presence.
The most common test of the negligence of a defendant is whether the consequences of its acts are reasonably to be foreseen as injurious to others coming within the range of such acts, and what is reasonably to be foreseen is generally a question for the jury.
The defendant in this case had knowledge of the plaintiff's ignorance of the operation of railway trains. Its ticket agent told the plaintiff where he should go in order to board the train, and this instruction was incorrect. It placed the plaintiff two tracks away from the track on which the train he was to board came in and departed. It placed him on the wrong side for boarding the train. The plaintiff was assured that he would be assisted in boarding the train. He was not. The plaintiff was given no notice of the impending departure of the train. Whether the defendant was negligent, with knowledge of all the facts and circumstances of the plaintiff's particular situation, in sending the plaintiff to the wrong place for boarding the train for which he had purchased a ticket, and whether the plaintiff was negligent in running after the train in order to attract the attention of those in charge of the train, are questions of fact peculiarly for the determination of a jury. Furthermore, whether or not the defendant, through its agents created an emergency by their actions, and the quantum of care required of the plaintiff in such an emergency, if emergency there was, are questions of facts for the jury. Under all the attendant circumstances, it was a question for the jury to determine whether or not the defendant was negligent in maintaining the encasement box concealed by the grass within the loading area, and it was unnecessary for the plaintiff to specifically denominate the presence of the box under such circumstances as negligence. We think that even if the plaintiff had tripped over his own feet instead of the encasement box, the jury might, depending upon the evidence adduced upon the trial, find that the defendant was negligent in creating an emergency which was the proximate cause of the plaintiff's injury.
Depending upon the evidence adduced upon the trial, the jury may very well be authorized to find that had the plaintiff not been sent to the wrong side of the train and had he been warned of its departure, he would not have, in his emergent excitement, run after the train and fallen over the concealed encasement box, which caused his hand to fall upon the track and his fingers to be severed therefrom. See in this connection Central R. & Bkg. Co. v. Perry, 58 Ga. 461. The defendant with knowledge of the facts and circumstances of the plaintiff's situation, set into motion a chain of events for which it is responsible, as that chain, insofar as appears from the petition, was unbroken by any intervening negligence. The trial court did not err in overruling the general demurrer to the petition.
2. We find no merit in any of the numerous special demurrers, most of which are imperfect as critics or are speaking demurrers.
Pursuant to the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232) requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.
GARDNER, P. J., dissenting. Counsel for the plaintiff argues that the plaintiff was a passenger to whom the defendant owed the duty to exercise extraordinary care and diligence. In support of this theory counsel cites Central R. & Bkg. Co. v. Perry, 58 Ga. 461, wherein the Supreme Court said: "One who has a railroad ticket and is present to take the train at the ordinary point of departure, is a passenger, though he has not entered the cars. In duties toward him, directly involving his safety, the company is bound to extraordinary diligence, and in those touching his convenience or accommodation to ordinary diligence. " (Italics ours). Counsel argues that the plaintiff had paid for a ticket and was at the ordinary point of departure of the train and that therefore the defendant owed extreme care and diligence to the plaintiff. Counsel submits that the first point to be established is the negligence of the defendant and that upon establishing that fact counsel would submit the contentions as to why the plaintiff could not have avoided the negligence of the defendant, by the exercise of ordinary care. Counsel for the plaintiff cites Atlanta Terminal Co. v. Alexander, 38 Ga. App. 280 (3) (143 S. E. 905). In that case the court held that one who obtains a railroad ticket, and presents himself at the usual point of departure of trains is a passenger, and as such: "He is entitled to have the railroad company exercise extraordinary care for his safety, and to exercise ordinary diligence in matters involving merely his convenience or accommodation." (Italics ours). Counsel for the plaintiff cites and relies on Coursey v. Southern Ry. Co., 113 Ga. 297 (38 S. E. 866), to sustain the position that the question as to whether or not a person is in fact an agent of a defendant is for the jury to determine. It is true that that case, under its facts, so held. However, as far back as 1865 the Supreme Court in Wright v. Ga. R. & Bkg. Co., 34 Ga. 330 (3), held that corporate bodies, especially railroad companies, have hundreds of employees daily, in various service, with divisions of labor and duty, and that such companies shall not be liable for damages upon the loose or casual sayings of every person who may be in their employment. In Flora Central &c. R. Co. v. Cain, 100 Ga. 472 (28 S. E. 381), cited by counsel for the plaintiff, it is held that if a conductor promises to give a passenger time to get on a train, it is the conductor's duty to see that the passenger gets on the train safely or at least to wait a reasonable time after giving the signal to move the train. In that case there was no question of the scope of the authority of the conductor.
Counsel for the plaintiff cite Southern Railway Co. v. Crabb, 10 Ga. App. 559 (3) (73 S. E. 859), wherein this court said: "The duty of extraordinary diligence for the safety of passengers, which rests upon a carrier in behalf of a passenger who has purchased a ticket and is seeking to enter the train for the purpose of being transported to his destination, and whether extraordinary diligence requires that a passenger be assisted in entering a train, may be dependent upon the circumstances and conditions surrounding the passenger, the location of the tracks, the height of the steps or platform, and other facts of the particular case. If, in the exercise of extraordinary care, it should be necessary for the safety of a particular passenger, in an emergency, that the passenger be assisted in mounting the steps, or otherwise aided, in entering the train, then it would become the duty of the carrier to assist the passenger." The facts in the instant case do not indicate that an emergency existed such as to require the agent of the railway company to anticipate an injury to the plaintiff and hence be liable for the injury sustained by the plaintiff. On the contrary it seems to me that the voluntary act of the plaintiff was a rash, imprudent and dangerous undertaking. See Horne v. Neill, 70 Ga. App. 602, 609 (29 S. E. 2d 275), wherein it is said: "One who voluntarily attempts a rash, imprudent and dangerous undertaking is to be presumed to have assumed the risk incidental thereto, and cannot afterwards complain if he is injured." In Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 (1) (68 S. E. 483), the Supreme Court said: "In the absence of anything to the contrary, every adult is presumed to possess such ordinary intelligence, judgment, and discretion as will enable him to appreciate obvious danger." In Southern Railway Co. v. Hogan, 131 Ga. 157 (1) (62 S. E. 64), the Supreme Court said, "One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, can not hold another liable for damages from injuries thus occasioned." See Briscoe v. Southern Ry. Co., 103 Ga. 224 (28 S. E. 638); and Simmons v. Seaboard Air-Line Ry., 120 Ga. 225 (47 S. E. 570, 1 Ann. Cas. 777). Counsel for both sides have cited and quoted cases involving boarding and/or alighting from a moving train. We will not analyze these cases because, in the instant case the plaintiff was neither boarding nor alighting from a moving train. He was running after and alongside a moving train preliminary to attempting to board it.
It is my opinion that the alleged negligence of the defendant was not the proximate cause of the injury to the plaintiff. The danger was known to the plaintiff or by the exercise of reasonable care should have been known to him. The plaintiff, in the absence of allegations to the contrary, was assumed to be physically and mentally capable of boarding a train without assistance, even though inexperienced. The plaintiff moved from a perfectly safe place to an unsafe place and was thereby injured. He therefore assumed the risk and failed to exercise ordinary care for his own safety. I think the trial court erred in overruling the demurrers to the petition.