Seaboard Air-Line Railway v. Chapman

ON MOTION FOR REHEARING.

Counsel in the petition for rehearing make the point that in the original decision we considered the case as if the negligence were solely that of the engineer who moved the engine. They insist that the negligence consisted in the fireman’s failure to ring the bell. The petition is so worded as to rely upon the negligence of both these employees. Of course, the thing that hurt the plaintiff was the fact that the engineer moved the engine suddenly and before the usual warning had been given. The failure to ring the bell could not have hurt the plaintiff, but it did tend to relieve his own action, in getting on the engine at that particular moment, from an imputation of contributory negligence. We concede that it is true, as counsel insist, that the rule alleged to have been violated reads, “The engine bell must be rung before the engine is moved,” and not “the engine must not be moved until the bell is rung,” but it is our opinion that the one thing, of necessity, connotes the other.

Counsel insist that the fireman who participated in the alleged negligence had actual knowledge of the plaintiff’s presence at the time of his injury, and that through the fireman’s actual knowledge the engineer had constructive knowledge, and that in light of this knowledge of his presence, actual to the one servant and constructive to the other, they owed him ordinary care, even though lie was a trespasser. In our opinion, it is seldom that constructive knowledge of a trespasser’s presence is sufficient to raise a duty toward him; generally actual knowledge is required; no such constructive knowledge as is here asserted is sufficient. Besides, even if ordinary care and diligence ever becomes the true standard of the measure of duty owed a trespasser, it is to be remembered that the same conduct may fulfil this standard as to a person in the situation of a trespasser, and not fulfil it as to a person differently situated. As to how the quantum of ordinary diligence varies in cases of trespassers, see DeVane v. A. B. & A. R. Co., ante, 136 (60 S. E. 1079); Charleston Ry. Co. v. Johnson, 1 Ga. App. 441 *714(57 S. E. 1064). The controlling error in the trial under review was that the court, by striking the defendant’s plea, shut off all inquiry into the question of the relative rights and duties of the respective parties to the transaction, as viewed from the standpoint that the plaintiff came to the engine to violate the law, and was. therefore a trespasser. Rehearing denied.