Opinion
43018.
ARGUED SEPTEMBER 11, 1967.
DECIDED OCTOBER 6, 1967.
Action for damages. Douglas City Court. Before Judge Waldroup.
H. J. Quincey, Jay, Garden Jay, Allan C. Garden, Clayton Jay, Jr., for appellants.
George E. Maddox, Preston Preston, M. L. Preston, for appellees.
One who recklessly tests an observed and clearly obvious danger, such as a near and rapidly approaching railroad train at a place which is not a regular crossing, for the purpose of removing a dog or other property from the track, and who in so doing fails to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances, must be held to have assumed the risk of resulting injury.
ARGUED SEPTEMBER 11, 1967 — DECIDED OCTOBER 6, 1967.
In this death action it appears from the evidence that the decedent, Mrs. Kib Taylor, was sitting with her daughter-in-law on the porch of her son's home facing a little-used dirt road and the defendant's railroad track in the town of Nichols; a child came up to tell her that a puppy belonging to her was on the track; she then went out to call the dog, proceeding along a little dirt path some 24 inches wide used by persons living in the vicinity to cross over the track and, when she was unable to coax the dog off the track she reached over to grab it and was hit by an approaching train. At the time she went after the dog she was aware that a train was coming. Several people called to her not to go on the track, and she actually looked at the train twice before attempting to make the rescue. As her daughter-in-law described it, the second time she looked up at the train "she was in bending distance — just enough to reach the dog . . . the train would not have hit her had she not stooped over, that's right." When the puppy, having come over to her at one time, ran back on the track "she looked up that time and she stood there begging him — and she looked up one more time — she would not get near it — and after that she must have sensed the train was coming closer and she turned and looked up — and she seen how close he was — he was about middle ways between the crossing and our house [approximately 300 feet according to other testimony] didn't look like he was close enough . . . if it had been a car she might have thought she'd make it . . . she made a grab for him — and it hit her that quick — and it surprised me. She didn't look to me like she was on the track. Q. From the time she looked up and saw the train and the time she reached for the dog it was just a split second? A. Yes, sir." This testimony was corroborated by other witnesses. The preponderance of testimony was that the train was traveling at less than the 40 mile per hour speed limit, but some estimates ranged up to 65 miles per hour. Mrs. Willis Taylor, who saw the tragedy from her house across the track testified that the decedent first stopped at the ditch beside the track and then, as the puppy ran back up between the rails and sat down in the middle of the track "she walked on up there and she — as the train was blowing, well, she looked up — I guess — and saw the train was close and then reached over for the puppy by the head, and then she saw the train — looked right up at the train — and then she just jerked like that, you know, just back, and that was it."
The defendant's motion for judgment notwithstanding the verdict based on its prior motion for a directed verdict was overruled, and it appeals from this judgment.
1. (a) "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." Code § 105-603. The first sentence of this Code section is taken to mean that the doctrine of comparative negligence is not applicable where, after the negligence of the defendant is actually apparent, the consequences of such negligence could have been avoided by ordinary care on the part of the plaintiff. Central of Ga. R. Co. v. Roberts, 213 Ga. 135 ( 97 S.E.2d 149). Neither can the plaintiff recover in a tort action, regardless of the negligence of the defendant, if she assumed the risk incident thereto. The latter statement is really an extension of the former; it arises where the proximate cause of the injury is a matter of knowledge and choice rather than mere carelessness and is referable to the conduct of the injured party after knowledge of the risk of injury rather than to the defendant who first created the risk. One assumes the risk of danger when he voluntarily places himself in a situation where it is likely to strike. In the present case the decedent had actual knowledge of the approach of the train. Her view of it was at no time impeded. From the testimony it appears that she made a last minute decision to enter on the track immediately in front of it, apparently misjudging its speed, distance, width or her own ability to get out of its way. The question of misjudging speed and distance as making a comparative negligence case was discussed in Yandle v. Alexander, 116 Ga. App. 165 ( 156 S.E.2d 504), where it was held applicable in an intersection collision case, the opinion, however, stating by way of obiter that assumption of risk is "the situation in which one voluntarily takes the risk of a danger which is so obvious that he knows or must know of it, as in trying to beat a rapidly approaching train across the track." P. 167. The distinction is thus quantitative rather than qualitative. Among cases holding that in such a situation recovery must be denied see Western A. R. v. Bloomingdale, 74 Ga. 604; Thomas v. Central of Ga. R. Co., 121 Ga. 38 ( 48 S.E. 683); Southern R. Co. v. Hogan, 131 Ga. 157 ( 62 S.E. 64); Shroeder v. Ga. R. Elec. Co., 142 Ga. 173 ( 82 S.E. 553); Rome R. Light Co. v. Barna, 16 Ga. App. 1 (2) ( 84 S.E. 209); Kirk v. Savannah Elec. c. Co., 50 Ga. App. 468 (1) ( 178 S.E. 470); Laseter v. Clark, 54 Ga. App. 669 (1) ( 189 S.E. 265); Central of Ga. R. Co. v. Roberts, 213 Ga. 135, supra.
(b) Did the emergency created in the decedent's mind by the fact that her dog was endangered by the approaching train relieve her of the duty to exercise ordinary care for her own safety? It was held in Louisville c. R. Co. v. Cline, 136 Ga. 863, 867 ( 72 S.E. 405): "For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence, which will preclude a recovery for an injury so received." Generally a person is not excused from the consequences of his own acts in exposing himself to the danger of injury for the mere purpose of saving personal property, where the danger is so apparent that a reasonable person should have seen and recognized it. Bullock v. Benjamin Moore Co., (Mo.App.) 392 S.W.2d 10, 14. So far as the rescue of property is concerned, the emergency created by the negligence of the defendant may well be sufficient to reduce the quantum of care which an ordinary person would exercise under the circumstances, but where the peril is so obvious that even under the circumstances it must be apprehended and the risk is then knowingly and voluntarily assumed, the assumption of risk doctrine rather than that of comparative negligence must control.
The trial court erred in denying the motion for judgment notwithstanding the verdict.
Judgment reversed. Jordan, P. J., and Quillian, J., concur.