This is an action for damages on account of the death of plaintiff's intestate, Lucile Davis, deceased, alleged to have been caused by the negligent and reckless acts of the defendant in control of and operating the Atlanta Charlotte Air Line Railway Company, in the particulars set forth in the complaint.
The defendant, amongst other things, alleged that the death of plaintiff's intestate was the result of her own negligence, and, as another defense, that she was guilty of contributory negligence.
At the close of the testimony defendant moved the Court to direct a verdict in his favor upon the grounds, amongst others, that the injury was the result of the negligence *Page 477 of the deceased as the proximate cause thereof, and that the deceased was guilty of contributory negligence. The motion was refused, the verdict was for the plaintiff, and defendant appeals.
The only reasonable inference which can be drawn from the testimony is that the deceased, Lucile Davis, was guilty of negligence, which contributed as a proximate cause of the injury which was received, and without which it would not have occurred.
The deceased, with companions, was walking along the railway operated by the defendant. This railway is one with double tracks. The bed of the railway in the vicinity where the injury was sustained is ballasted to such an extent that it presents a difficult path to pedestrians attempting to walk between the rails. At the side of the rails beyond the ties is a well-beaten and easy path. Persons walking or standing in this path would not be in a position to be struck by passing trains.
Miss Davis and her companions were standing on one of the tracks, between the rails and on the ballasted portion of the roadbed, watching a freight train pass on the other track. While so engaged she was struck and killed by passing passenger train operating on schedule time. Numbers of trains, both passenger and freight, passed over these tracks daily. The party was warned of the danger of being on these double tracks. The warning, in the light of all the circumstances, was unnecessary. It is neither alleged nor suggested that Miss Davis or her companions were laboring under any physical or mental disabilities. It would then and there have been apparent to any person of ordinary reason, prudence, and caution that the place occupied by these persons was one of extraordinary danger. It also would have been apparent to a person of ordinary reason, prudence, and caution that within a few feet was a place of safety. *Page 478
Miss Davis was negligent in deliberately choosing a place of danger from which to view a passing freight train, and, having chosen that place, she also was negligent in not exercising her normal faculties in looking for the approach of trains on the track whereon she was standing. Had she exercised ordinary care in either particular, the injury would not have occurred. No other reasonable inference can be drawn from the testimony. I therefore concur in the conclusion of Associate Justice Fraser that a verdict for the defendant should have been directed.
The judgment should be, and is, reversed.