I think that under the pleadings and evidence a verdict for the defendant was demanded. As the opinion of the majority does not set forth the pleadings, evidence or issues in enough detail, it will be necessary for me to do so in order to make clear the grounds of this dissent. The petition as amended alleged substantially as follows: That the plaintiff was employed by the Central of Georgia Railway as a switchman; that, among other things, it was his duty to assist in carrying trains from the Terminal Station to the Union Station in the City of Atlanta, and in such movement to give signals, to pass signals from one member of the crew to another, to throw switches, and to couple and to uncouple cars and engines; that on or about June 6, 1946, shortly after 10 a. m., pursuant to his duties, the petitioner was on a train known as "The Southland," which was in the charge of the defendant's employees and was being run from the Terminal Station to the Union Station, as aforesaid; that as said train was being backed towards the Union Station, the plaintiff was riding on the steps of the fourth or fifth car from the engine, on the engineer's side, in order to perform his duties of passing signals from the switchman or the conductor on that end of the train next to the Union Station to the engineer on the other end thereof; that said train was composed of approximately twelve cars, and as it arrived at the western end of the butterfly shed of the Union Station, it was being run in an easterly direction along track 3; that said train was being pushed by its engine, which was located at the western end of same; that said movement was one that customarily took place *Page 548 each day of the week; that a conductor was on the forward end of said train for the purpose of giving signals to the petitioner, who, in turn, was to relay same to the engineer so that the train might be stopped when it was in proper position alongside the shed, for the purpose of allowing passengers to embark thereon, and for the lowering of baggage, express and U.S. mail; that track 3, to the west of said station, curves towards the south, and towards the eastern part thereof, it curves to the north; that paralleling track 3 and to the north of same was another track known as track 2; that, as was usual and customary, the petitioner alighted from his train upon a crossing near the western end of said butterfly shed while it was still in motion, for the purpose of relaying signals and uncoupling the engine and one car from said train, so that said car might be delivered to the defendant railroad; that, after doing so, in order to get in a position where he could be seen by his engineer, petitioner walked between track 2 and track 3 in an easterly direction, going to the left of a permanent concrete box-like opening for water, which was about 18 inches wide, 2 feet long, and 12 inches high, from which a line of heavy rubber hose extended in an easterly direction; that in so doing, he walked within about 18 inches of the southern rail of track 2; that he had been walking for about 35 or 40 feet, engrossed in the performance of his duties, all the while looking ahead for a signal from the lead flagman, when he was run into and struck by an engine of the defendant in charge of the defendant's engineer; said engine was then and there being driven over track 2 in an easterly direction; that said engine was being driven at the great, rapid and reckless rate of speed, to wit, the speed of 25 miles per hour; that the bell of said engine was not being tolled; that the whistle on said engine was not being blown or other warning given by the defendant; that the petitioner did not know of the approach of said engine nor was he given any warning thereof by any person; that the plaintiff's left shoulder and left side were hit by the corner of the tank of said engine, inflicting upon him severe bodily injuries; that there was a municipal ordinance of the City of Atlanta limiting speeds of trains within the city limits to 20 miles per hour; that at and about the place where plaintiff was injured, employees of the roads using the Union Station, and *Page 549 station employees, were constantly passing alongside and over said tracks in question, giving signals, inspecting equipment, servicing coaches, unloading express and mail, and the like, all of which, in the exercise of ordinary care, should have been known to the defendant and its engineer; that in the exercise of ordinary care, the defendant's engine should have been run at no greater rate of speed than 3 or 4 miles per hour, and the bell should have been constantly tolled; that the defendant had a servant riding upon a stirrup on the engineer's side on the end of the tank of said engine for the purpose of looking out ahead and giving signals to said engineer; that the petitioner was in a position between tracks 2 and 3 where he could have been seen by said trainman of the defendant for at least 250 or 300 feet before he was struck, but he failed to keep a strict lookout and he gave no warning signal to the petitioner or to his engineer to slow down or stop; that the following negligent acts of the defendant were the direct and proximate cause of the plaintiff's injuries: (a) In driving said engine at a speed in violation of said ordinance, (b) In driving said engine at the great, rapid and reckless speed aforesaid, having in view the character and use of that part of the station grounds, (c) In failing to constantly toll the bell of said engine at the time and place in question, (d) In failing to give the petitioner any warning by bell, whistle, or otherwise, and (e) In not keeping a strict lookout ahead, and (f) In failing to so control the movement and regulate the speed of said engine to avoid doing injury to the plaintiff. The defendant in its answer alleged that the original plaintiff (hereinafter, the deceased will be referred to as the plaintiff, he having died and his administrator having been made a party plaintiff after the denial of motion for a new trial) swung off the train on which he was riding so close in front of the defendant's engine that it was impossible to stop or materially slacken the speed of the defendant's engine before it struck the plaintiff; that at the time of the injury there was in effect a valid and binding rule of the defendant railroad governing the conduct of the defendant's employees and governing the conduct of the plaintiff while on the tracks and right-of-way of the defendant, which provided: "Do not rely upon others to give notice of the approach of an engine or train"; that the plaintiff *Page 550 violated the rule relied on by the operators of the defendant's engine to give notice of the approaching engine and did not look back in the direction of the defendant's engine approaching on an adjacent track and that such negligence was the proximate cause of the injury; that the plaintiff was negligent in the following particulars: (a) In swinging off his moving train immediately in front of the defendant's approaching engine, (b) In failing to look back in a reasonably diligent manner along the adjacent track for approaching engines or trains before alighting from his moving train, (c) In failing to look back in a reasonably diligent manner along the adjacent track for approaching engines or trains before alighting from his moving train in view of his familiarity with the use of such track and his knowledge of the presence of the defendant's engine on such track and of its expected movement over such track, (d) In failing to look back in a reasonably diligent manner along the adjacent track for approaching engines or trains immediately after he alighted from his moving train, (e) In failing to remain in a place of safety in the clearance between his train and the defendant's engine after he alighted from his moving train, (f) In assuming a position of peril so close to the defendant's south-bound main line track to be struck by an engine approaching from his rear, (g) In assuming and remaining in a position of peril so close to the defendant's track that a train could not pass without striking him, as he walked south between such tracks, (h) In failing to look back along the track, for trains or engines approaching from his rear on such track. The allegation that the defendant was negligent in failing so to control the movement and regulate the speed of the engine as to avoid doing injury to the plaintiff was stricken on demurrer and the judge in his charge eliminated the issue raised by the allegation that the defendant's engine was being operated at 25 miles per hour. The remaining acts of negligence in the case were: (a) excessive rate of speed, having in view the character and use of that part of the station grounds; (b) in failing to constantly toll the bell; (c) in failing to give warning; and (d) in not keeping a strict lookout ahead. The plaintiff testified as follows: "I saw N.C. engine No. 536 standing still there on the south-bound main line just north of Foundry Street. . . I had seen *Page 551 that movement of that engine backing up from time to time on many occasions. So, when I saw that engine I knew why it was there, and I knew what it was going to do; back up over track 2, and I knew that track 2 was the adjoining and parallel track with track 3 that my train was on. . I would not pay any attention to the engine across a few tracks. I have about all on my mind for the safety of my train and passenger and workmen that I can attend to. . . When our crew went over into the W. A. yard, we were governed by the W. A. rules. As to whether or not I was familiar with those rules, well, I am pretty familiar with all the rules. We were governed by the operating rule of the N.C. or the W. A. Railroad after we got on their property; that is correct. As to whether I was familiar with the rules of the N.C. Railroad which provides `do not rely upon others to give notice of an approaching engine or train. . .' I cannot say that I knew that rule. I don't recall reading it. I guess I have heard of that rule. . . As to whether that was one of the rules I was required to obey when I went on the W. A. tracks, that's the rule. . . When I swung off my train, I started walking south immediately. I did not stand there. As to how fast I was walking, I guess two or three miles an hour, just about as fast as my train was running, and after I started walking close to the railalong track 2 I never looked back along track 2 to see if anytrain was coming, because I was not expecting anything to pass us. . . At the place where I was hit by the engine there was sufficient clearance between the tracks to stand in a place of safety between trains on adjoining parallel tracks. . . Had I known that a train or engine was approaching on track 2 I could have stood between the tracks and let it go by." (Italics ours.)
The rule, above referred to, relieved the defendant from any duty to the plaintiff as to any of the specifications of negligence left in the case after the evidence was all in. The petition did not allege wilful and wanton conduct and the specification of negligence which would have made the doctrine of last clear chance applicable was stricken from the petition and the judge specifically charged the jury that the plaintiff's engrossment in the performance of his alleged duties would not excuse him from exercising care for his own safety. His own testimony shows *Page 552 that he was not so engrossed and was at all times cognizant of the dangers incident to his situation. The rule by which the plaintiff admitted he was bound placed him virtually in the status of a trespasser in his relation to the defendant in which the defendant would only be liable for wilful and wanton conduct or negligence under the last clear chance doctrine under circumstances where the plaintiff was negligent and the defendant was under duty by reason of the plaintiff's inattentiveness and lack of awareness of his danger to exercise ordinary care to avoid injuring him. Neither of these grounds of liability is in this case by reason of the rulings on the specifications of negligence stricken, and the plaintiff's evidence as to his being aware of his danger. In view of the rule, and what has just been said, the ruling in Richmond Danville R. Co. v. Watts,92 Ga. 88 (17 S.E. 983) is applicable to this case. It was the plaintiff's duty to keep a lookout, to look back and see whether a train was coming. His failure to do so was the proximate cause of his injuries. There is no evidence that the operators of the defendant's engine realized that the plaintiff was not going to look back for the oncoming engine in time to warn him or otherwise avoid injuring him. Under the pleadings and evidence the defendant was guilty of no negligence. The injuries received by the plaintiff, now deceased, were due solely to his failure to exercise ordinary care for his own safety.