Bailey v. Georgia & Florida Railway

Fish, C. J.,

concurring specially. The alleged negligence of the defendant railway company, upon which the plaintiff relied for a recovery, was that the train upon which he was a passenger did not stop at his destination (which destination was known to the conductor) a sufficient length of time for him to alight therefrom. The petition alleged that “on the arrival of the train at Blun [plaintiff’s destination] it came to a halt, and plaintiff arose from his seat, going directly forward to the front end of the coach. . *142About the time the plaintiff arrived at the front door of the coach the train started slowly; and as it was necessary that plaintiff alight at that point, plaintiff started to get down to step from the platform to the steps and onto the ground. A negro man or boy at that time stepped on the lower step of the platform of the coach in which plaintiff had been riding, and plaintiff was obliged to step over to the rear platform of the forward coach immediately getting down the steps; the train was moving slowly, and, there being no apparent danger, plaintiff alighted from the lower step to the ground, alighting on his left foot, and holding to the hand-rail with his hand and then making an effort to catch on his right foot, turning loose the handhold of train, when he was thrown to the ground and his thigh broken. Plaintiff alleges, that in alighting from said coach he used all reasonable care and caution, that the train was moving slowly, and that he looked to the ground before he alighted and saw that it was reasonably smooth and that no danger was apparent.” In view of the former decisions of this court, it is clear to my mind that the petition set forth no cause of action, and the general - demurrer thereto should have been sustained.

In Barnett v. East Tenn. &c. Ry. Co., 87 Ga. 766 (13 S. E. 904), it was held: “A declaration alleging that the conductor of a passenger-train agreed with plaintiff to stop the train for him to get off at a point where there was no regular station, but at which defendant’s road crossed another railroad at grade, that plaintiff paid his fare do this point, and that on reaching the same the train only slowed up and did not stop, so that plaintiff, ‘in order to keep from being carried beyond his destination, was compelled to get from the moving train,’ and in so doing was seriously injured, does not set forth a cause of action, it appearing from these allegations that plaintiff’s injury was caused by his own voluntary act in taking a dangerous risk, if the train was moving so rapidly as to make leaving it unsafe, or, if not, that the injury must have resulted from a mere accident, or from plaintiff’s own carelessness in getting off.” This ruling was followed in Jones v. Georgia &c. Ry. Co., 103 Ga. 570 (29 S. E. 927). Some of the other cases in which the same principle has been recognized and followed are the following: Simmons v. Seaboard Air-Line Ry., 120 Ga. 225 (47 S. E. 570, 1 Ann. Cas. 777); Ga. &c. Ry. Co. v. Hutchins, 121 Ga. 317 (48 *143S. E. 939); Hill v. L. & N. R. Co., 124 Ga. 243 (52 S. E. 651, 3 L. R. A. (N. S.) 432); Turley v. Atlanta &c. Ry. Co., 127 Ga. 594 (56 S. E. 748, 8 L. R. A. (N. S.) 695); Johns v. Georgia Ry. (&c. Co., 133 Ga. 525 (66 S. E. 269). It will be noted that there was no jerk in the present case, as there was in.the cases cited in the majority opinion, and in .other cases on the same line decided by this court, and where some' broad language, but purely obiter, was used.

Although the railway company excepted pendente lite to the overruling of its general demurrer to the petition, it filed no cross-bill of exceptions, and the judgment overruling such demurrer must be treated by this court as a final adjudication that the petition set forth a cause of action; in other words, it was, so long as it stood, the law of this case, and as the evidence introduced on the trial by the plaintiff was amply sufficient -to prove every allegation in the petition, the court-erred in granting a nonsuit. Brooks v. Rawlings, 138 Ga. 310 (75 S. E. 157).