Opinion
34615.
DECIDED OCTOBER 8, 1953.
Action for damages. Before Judge Perryman. McDuffie Superior Court. February 21, 1953.
W. Tom Veazey, Randall Evans, Jr., for plaintiff in error.
Stevens Stevens, contra.
The court did not err in sustaining the general demurrers to the effect that, under the allegations of the petition, the fireman was not a joint tort-feasor with the other defendants; and since the allegations of the petition show that the fireman was the only resident of McDuffie County against whom the suit was brought, it could not be maintained against the other defendants in that jurisdiction.
DECIDED OCTOBER 8, 1953.
The plaintiff in error here (whom we shall hereinafter refer to as the plaintiff) brought a suit to recover damages from Atlantic Coast Line Railroad Company, Louisville Nashville Railroad Company, J. R. Robins, the conductor, G. G. Sale, the engineer, and Wylie Burnley, the fireman. We will refer to them together as the defendants and when speaking of them separately, will designate them by given names. The petition alleges that the damage and injury occurred in Taliaferro County, Georgia. The suit was brought in McDuffie County, Georgia, which is the residence of the fireman of the train in question. The suit was for the alleged death and mutilation of the body of the plaintiff's husband, Younger W. Shelton. We shall refer to Shelton as the deceased. The injury is alleged to have happened on a straight line of railroad track, not within a town or municipality and not near a railroad crossing. The defendants demur generally to the petition: "Upon the ground that the petition showed on its face that the Superior Court of McDuffie County does not have jurisdiction of said case, because the facts alleged against Wylie Burnley, the only resident of McDuffie County, are insufficient in law to confer jurisdiction upon this court, the facts not setting out a cause of action against Wylie Burnley."
On this demurrer the court made the following order: "Ground 2 of said demurrer is hereby sustained and the petition dismissed, because in the opinion of the court no actionable negligence is set out in the petition against Wylie Burnley, the only resident defendant of McDuffie County, Georgia, and especially is this true when his alleged acts of negligence are considered in connection with the alleged negligent acts of the engineer." The acts of negligence on the part of the engineer are set out in the petition and the amendment thereto as follows: "(a) In operating said train at the rate of speed of 60 miles per hour, and at such a fast speed that he could not stop said train after being notified by the fireman of the presence of Younger W. Shelton on the track in an apparently incapacitated condition. (b) In not keeping a lookout ahead, in order to observe and know of the presence of Younger W. Shelton on the railroad track when he first came in sight of him a mile or more away. (c) In not immediately applying the brakes, including the emergency brakes, as soon as he was notified of the presence of Younger W. Shelton on the railroad track, and of the automobile in the cut by the track. (d) In running over the said Younger W. Shelton and killing him and mutilating his body under the circumstances aforesaid."
The plaintiff in an amendment to her petition further alleges as to the negligence of the engineer that he saw the deceased lying on the tracks immediately when his attention was called thereto by the fireman, but nevertheless ran 100 to 150 yards thereafter before he applied the brakes. The negligence alleged against the fireman, Wylie Burnley, is: "(a) In failing to keep a lookout ahead on the straight track of one mile before coming to Younger W. Shelton until he had traversed a portion of said straight track. (b) In observing Younger W. Shelton on the railroad track in a helpless and incapacitated condition, and in observing his wrecked automobile by the side of said railroad track, and in not immediately communicating said fact to the engineer. (c) In not applying the air brakes and emergency brakes, and in not doing something to help the said engineer control the speed of the train and bring it to a stop after knowledge of the imminence of striking and running over of said Younger W. Shelton."
In an amendment to the petition the plaintiff further alleges as to the negligence of Wylie Burnley as follows: "Said Wylie Burnley knew the engineer was not looking ahead, and Wylie Burnley had an opportunity himself to keep a lookout ahead, and knowing that no one else was doing so, failed to keep a lookout ahead; said Wylie Burnley knew the engineer was not keeping a lookout ahead and was therefore not aware that a helpless and incapacitated person was on the track ahead, and Wylie Burnley knew the engine was advancing towards said person at a rate of speed of sixty miles per hour, and that unless the engineer immediately applied the brakes, the engine would run over said person."
1. The only question presented and argued here is whether the petition alleges a cause of action against the fireman. If it does, the court erred in dismissing the petition on the ground that the court was without jurisdiction to entertain the petition. If there are no acts of negligence alleged as a matter of law to show that the conduct of the fireman alone, or in connection with the negligence of the defendants or some one of them, proximately caused the alleged injury, the court was without jurisdiction to entertain the suit in McDuffie County, Georgia. This is true regardless of whether the allegations of fact are sufficient to set out a cause of action in some other venue against the other defendants. The petition shows that the deceased was a trespasser and the duty resting upon the defendants was not to wilfully and wantonly injure him after actual knowledge that he was present on its track. The petition properly alleges this principle of law, and such principle is properly argued by counsel for both parties in their briefs and arguments. The allegations that the fireman, Burnley, told the engineer about seeing the deceased on the tracks, when and at which time the engine was some 100 to 150 yards from the deceased lying upon the railroad tracks, and that the engineer refused and failed to apply the brakes and stop the train, do not in our opinion allege negligence on the part of the fireman sufficient to charge him with negligence proximately causing the injury. Such allegations go only to the negligence of the engineer and not to the fireman. Such allegations do not constitute wilful and wanton negligence on the part of the fireman. So far as we are aware, the law implies no duty under such circumstances as here alleged, upon the fireman to manage, control, or stop the train. There is no duty imposed upon the fireman to keep a lookout ahead of the engineer, under such circumstances as to herein alleged. The alleged negligence against the fireman, under the facts of the instant case, does not amount to wilful and wanton negligence. There is no allegation that the fireman committed any act or deed affirmatively so as to proximately cause the injury. It is for non-performance of alleged acts on which wilful and wanton negligence is based. All the acts of non-performance as against the fireman, under the allegations of the petition, are insufficient as a matter of law to charge him with wilful and wanton negligence which was the direct and proximate cause of the alleged injury and damage.
2. We come next to consider the contention of the plaintiff on this question. Our attention is called first to Central of Georgia Ry. Co. v. Sharpe, 83 Ga. App. 12 ( 62 S.E.2d 427). A careful reading of that case will reveal that the facts therein alleged are not similar to those alleged in the instant petition. Our attention is next called to Redding v. Callaway, 74 Ga. App. 855, 859 ( 41 S.E.2d 804) calling our attention to an excerpt from that case as follows: "Even where a person on the track is in fact discovered, it is the general rule that a railway company is authorized to act on the presumption that a person apparently of full age and capacity, standing or walking along or near its track, will leave it in time to save himself, unless it should also appear that such trespasser is in an apparently incapacitated or helpless condition, so that he could not reasonably be expected to extricate himself from his peril." In that case the deceased was traveling on the railroad track at a place where the employees should have anticipated that one might be, and they failed to sound a warning or to otherwise protect the pedestrian. In the instant case there was a straight, long, stretch of the railroad track where it appeared that there was no statutory duty on the employees to keep a lookout, and certainly no duty on the part of the fireman to attempt to stop the train, which duty was on the engineer. The plaintiff further contends that she is not relying upon any statute which requires the fireman to do any particular thing under the circumstances alleged, and that she is not alleging the violation of any statute in specific terms, but that the law of reasonable care and diligence is to the effect that humanity dictates that Wylie Burnley, the fireman, should have done something when he saw a person in a helpless and incapacitated condition lying on the tracks, and the plaintiff alleges and contends that under such circumstances the fireman did nothing. In this connection our attention is called to Western A. R. Co. v. Reed, 35 Ga. App. 538, 540 ( 134 S.E. 134). Here is what the gist of that case is, according to an excerpt from that decision as follows: "That is to say, an act or omission may amount to negligence under the particular facts and circumstances, although there is no statute so declaring. The fact that the law says that the company shall do certain things at a public road crossing does not mean that the dictates of ordinary prudence might not require the doing of the same or similar things at other crossings used by the public with the knowledge and consent of the company. The petition in this case did not charge the violation of any statute, but simply alleged the omission, in certain particulars, of ordinary care, the duty of such care sufficiently appearing." (Italics ours.)
The same principle was applied in Pollard v. Savage, 55 Ga. App. 470, 475 ( 190 S.E. 621). It should be observed that in both of those cases a public crossing was involved but not such a crossing as was embraced within the statute, and in such an event at a crossing not covered by a statute, it might be negligence as a matter of fact not to blow the whistle or do such other things as ordinary care would require. In those cases there was no question of wanton or wilful negligence involved, as in the instant case. In the instant case we are dealing with an incident which is alleged to have occurred on a straight line of railway with a trespasser involved. There was no duty on the part of the fireman, who was not operating the train at the time, but the engineer was operating the train. Insofar as the allegations of the petition show, the fireman had no duty as a matter of law, nor any burden as a matter of fact, to do anything. To hold otherwise would require the railroad companies to require that firemen take charge of the operation of the trains on all similar straight stretches of the track, or otherwise the defendant railroad companies would be held to wilful and wanton negligence. We do not think that the law requires such a burden on the part of a railroad company in the operation of its trains by requiring the fireman to measure up to such a standard, even though the facts alleged might make it a case against the railroad companies and its engineers in the operation of its trains, as alleged in the instant petition.
Our attention is next called to Georgia Power Co. v. Blum, 80 Ga. App. 618(1) (57 S.E.2d 18). The principle of law decided in that case is correct, but it has no application to the allegations of fact in the instant case. The difficulty with the position of counsel for the plaintiff here is that there are no allegations of fact which would make the fireman a joint tortfeasor. Our attention is called next to Atlantic Coast Line R. Co. v. Knight, 48 Ga. App. 53 ( 171 S.E. 919). The facts in that case are not in any wise similar to those in the instant case. That case involves a section foreman who was sued as a joint tort-feasor and for not keeping the right-of-way clear of underbrush and inflammable material, whereby a train traversing the tracks and emitting sparks of fire, set fire to underbrush, and the fire spread to the lines of others over the right-of-way and injured the property of a third person. The court held that the section foreman was a joint tort-feasor and could be sued in the county of the section foreman, along with the railroad company. The duty of care involved in that case is that of ordinary care as applied to performance and non-performance of a duty. That question is far afield from the allegations of the instant petition, which are based upon the wanton and wilful negligence of a fireman on an engine of the railway company as against a trespasser on the property of the company.
The court did not err in sustaining the general demurrers to the petition, on the ground that the Superior Court of McDuffie County was without jurisdiction to try the case for the reason that the allegations were insufficient to show that the fireman was a joint tort-feasor along with the other defendants. Since the court did not err in holding that the Superior Court of McDuffie County was without jurisdiction, it becomes unnecessary to pass upon the special demurrers.
Judgment affirmed. Townsend and Carlisle, JJ., concur.