
    COLUMBUS RAILROAD COMPANY v. ASBELL.
    1. In an action against a street railway company to recover damages for the death of a person by alleged negligence,, the relative questions of the diligence or negligence of the deceased and the defendant are for determination by the jury, where it appears that the street railway company operating open cars allowing passengers egress from either ' side, stopped its car just after clearing a cross street, and a passenger alighted' on the side next to a parallel track and proceeded five or six steps along the space between the tracks, until he reached the street crossing, and then attempted to cross the ^parallel track, when he was struck and killed by a car on the parallel track running at a dangerous and reckless rate of speed, notice of the approach of which was not given by the sounding of a gong, and the ordinary noise of its running could not be heard because of the loud and rumbling noise made by the departing car from which the passenger had just alighted, and which could not be seen because it had not come into view, and also because of the shadow produced by an electric street lamp. A petition by the widow of the deceased against the railway company, alleging the foregoing facts, is not open to general demurrer.
    2. In an action of the character described in the foregoing note, it is competent for the plaintiff to allege and prove, as explaining the care and diligence of the person killed, that the car from which the deceased alighted was not equipped with bars, nor was the deceased warned by the railway company’s servants, as they saw him alight from the side of the car next to the parallel track, of the danger incident thereto.
    Argued July 12,
    Decided December 22, 1909
    Action for damages. Before Judge Gilbert. Muscogee superior court. January 9. 1909.
    Mamie T. Asbell brought an action against the Columbus Kailroad Company, a street railroad compapy, to recover damages for the alleged killing of her husband by the negligent running of its ears. The defendant filed its demurrers, general and special; the same were overruled, and it excepted. The petition alleges that Asbell was killed by the operation of the defendant’s cars under these circumstances: Broad street and First and Second avenues are parallel streets in the City of Columbus, running north and south. These streets are intersected at right angles by Fifteenth street. The railroad was double-tracked on Fifteenth street, between Broad street and Second avenue. Asbell boarded the Rose Hill ear, which ran southward down Second avenue to Fifteenth street, and on Fifteenth street to First avenue, where, at his request, the car stopped and he got off. After leaving his ear he proceeded three or four steps between the defendant’s tracks to First avenue and then turned down First avenue, and as he was crossing the lower track he was struck by another car of the defendant and killed. The North Highlands car, which struck him, traveled northward up Broad street to Fifteenth street and then turned east. From the point where the car turned into Fifteenth street to the place where Asbell was killed is 295 feet and 8 inches. The car on which he was riding was constructed with reversible seats, compelling passengers to alight from either side upon a running board, and then to the ground. At the time of the collision, which was eight o’clock, there was a large and brilliant electric light about the centre of the intersection of First avenue and Fifteenth street, which prevented Asbell from distinctly seeing and recognizing objects outside of the radius of the light. At the time he alighted from the ear, the North Highlands car which struck him had not turned out of Broad street, and he did not see or know that any car was approaching. Just after he had alighted on the ground and proceeded three or four steps, the car from which he had alighted moved off towards Broad street with a loud rumbling noise, which prevented him from hearing any sound which would indicate the approaching ear on the lower track; he did not have any warning from the sound of a gong, or in any other way, that a car was approaching on the parallel track, or have reason to apprehend that any car was approaching. When he stepped from the car and attempted to cross the parallel track, he did not see the car which struck him, nor could he have seen it by the exercise of ordinary care and diligence; nor did he have any notice or reason to apprehend that a car was approaching, or that it was dangerous or unsafe for him to cross the track. It was alleged that the defendant was negligent in the following specific acts: (a) In not causing the North Highlands car, which struck Asbell, to approach the crossing to First avenue and Fifteenth street in a careful and prudent manner; (5) in causing this ear to be run and operated at a dangerous, reckless, and unreasonable rate of speed at the time and place it struck Asbell; (c) that the agent of the company in charge of this ear did not slacken its speed, nor keep it under control, as it was approaching and passing over the crossing of First avenue and Fifteenth street; (d) that-the North Highlands ear was defective and not in good order, and in consequence thereof its movement and speed could not readily be controlled or checked; (e) that the Rose Hill car, which transported Asbell, was not equipped with gates or boards to prevent passengers from alighting from the car on the side next to the parallel track at the locality where he was stricken; (f) that neither the conductor on the Rose Hill car nor any other employee gave any notice or warning to Asbell that it was dangerous for him to alight from the side of the car next to the parallel track, notwithstanding the conductor saw him when he was about to alight, and when he alighted.
    
      Samuel B. Hatcher, Franlc 77. Garrard, and W. O. Neill, for plaintiff in error. A. W. Gozart and William A. Little, contra.
   Evans, P. J.

According to the petition, the plaintiff’s husband had safely alighted from the car which transported him to the intersection of Fifteenth street and First avenue. He then ceased to be a passenger. Augusta Ry. Co. v. Glover, 92 Ga. 132 (14), 148 (18 S. E. 406). After leaving the car he advanced three or four steps between the parallel tracks of the defendant until he reached First avenue and then turned southward on that thoroughfare at the intersection with Fifteenth street; and just as he was passing over the parallel track of the defendant, he was stricken by a car .running on that track. He was not a trespasser, and the railroad company owed him a duty to exercise ordinary diligence to prevent injuring him, and he likewise was under duty to exercise the same diligence to save himself from injury. The servants of the railroad company were running the car which killed him at an excessive and dangerous rate of speed while approaching a street crossing where pedestrians were likely to be, and without sounding a gong or giving other warning. Surely it was a question for the jury to say whether the railroad company exercised the proper care in the running of the car which killed the plaintiff’s husband. On the other hand, do the facts alleged compel a conclusive inference that the plaintiff’s husband failed to exercise ordinary care for his own safety and protection? When a person knowingly and voluntarily puts himself in a place of immediate and obvious peril or exposure to injury, without some reason of necessity or propriety in so doing, and injury happens to him in consequence of his being in that place, he is not allowed to recover, notwithstanding the party may negligently injure him. An illustration of this rule may be found in the late case of Harris v. Southern Ry. Co., 129 Ga. 388 (58 S. E. 873), where a plaintiff was denied recovery for an injury occasioned by being struck by an engine, because, with a knowledge of the impending danger, he stepped on the track of the railroad company and attempted to cross immediately in front of the moving engine, although it appeared that the agents of the railroad company may have been negligent. Such cases stand upon a different footing from those in which the arrangements of a street-car company for the accommodation of persons-in taking and leaving ears afford a' reasonable justification to the party being on the track, and thus exposed to the dangers incident to such a position. In such a case the court will not declare the person so negligent as to bar him of recovery, unless his whole conduct, viewed in the light of his environment and all the circumstances, demands a finding that he was lacking in ordinary care for his own protection and safety. If the facts afford an inference that the person injured did exercise ordinary care, his negligence or diligence should be left to be decided by the jury, and the court should not attempt to decide the ultimate fact by a preponderance of evidence. Atlanta Con. St. Ry. Co. v. Bates, 103 Ga. 333 (30 S. E. 41); Macon Ry. Sc. Co. v. Streyer, 123 Ca. 279 (51 S. E. 342). Measured by this rule, we can not say, as matter of law, that plaintiff’s husband, according to the allegations of the petition, was guilty of negligence which debarred the plaintiff’s recovery. He got off the car at a street crossing; the car was so constructed that he might alight from either side; the company neither by word nor act warned him of any danger which might come from alighting on the side next to the parallel track; he walked three or four steps to reach the street upon which his business house was located, and then turned southward on that street in a direct route to his destination. He was crossing the track at a place where pedestrians had the right to cross. A brilliant electric street light was burning, the effect of which was to confine his vision within the circle of its shadow; the North Highlands car had not turned from Broad street into Fifteenth street when he alighted from the Bose Hill car. The departing Bose Hill car made such a loud and rumbling noise that he could not hear the rapidly approaching ear, which gave no warning of its approach. These were the conditions which surrounded the plaintiff’s husband when he started to his place of business, and just as he was passing over the parallel track he was struck by the North Highlands car, running at an excessive and dangerous speed, and hurled 35 feet. The conduct of the plaintiffs husband should be weighed by a jury to determine whether he used due care, both in leaving the car on the side next to the parallel track, and in attempting to cross Fifteenth street at the intersection of First avenue in the manner he did.

The defendant demurred specially to those allegations of the petition to the effect that the Eose Hill car which transported the plaintiffs husband to First avenue was constructed with reversible seats, compelling passengers to alight from the side of the ear, and was not equipped with gates or bars to warn passengers from alighting from the side next to the parallel track; and that notwithstanding the defendant’s servants on the Eose Hill car knew it was dangerous for plaintiffs husband to alight from the side of the car next to the parallel track, they did not warn him, when he was seen in the act of alighting, of the danger incident to alighting from that side of the car. The point is made that these allegations are irrelevant, and that the company was under no legal duty to warn the plaintiffs husband of any danger resulting from alighting on the side of the company’s parallel track, or to equip its cars with gates or bars to prevent egress from that side. In the absence of a statute or valid municipal ordinance, there is no absolute duty resting on a street railway company, operating its cars on parallel tracks, to equip them with gates or bars to prevent passengers from getting off on the side next to the parallel track; yet whether it is negligence to fail to so equip its cars is a question for the jury, to be determined upon the facts of each case. Augusta Ry. Co. v. Glover, supra. The allegations sought to be stricken were not irrelevant. • The plaintiff by these averments was attempting to show, that her husband alighted from the Eose Hill car according to the arrangement of the company; and that, the cars being so arranged that egress might be from either side, the failure of the company to provide bars on the side of the car next to the parallel track, or to otherwise warn her husband to refrain from alighting on that side, afforded a legitimate inference that he left the Eose Hill car- in the manner he did by invitation of the company, and that he had reasonable justification in getting off the ear onto the space between the tracks, and to walk from there to the cross street. The plaintiff was entitled to prove these facts in order to show that her husband was not necessarily guilty of contributory negligence in alighfcing on the space between the tracks, from where the car stopped a distance of five or six steps to the street crossing, and to have the question of his diligence in this respect weighed by the jury, under all the attendant circumstances.

Judgment affirmed.

All the Justices concur.  