Ashworth v. East Tennessee, V. & G. Ry. Co.

Decision Date12 August 1895
Citation23 S.E. 86,97 Ga. 306
PartiesASHWORTH v. EAST TENNESSEE, V. & G. RY. CO.
CourtGeorgia Supreme Court

Syllabus by the Court.

Without regard to the question of the defendant's negligence, the evidence introduced by the plaintiff showing clearly that by the exercise of ordinary care he might have avoided injury it was a proper case for a nonsuit.

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by J. B. Ashworth against the East Tennessee, Virginia & Georgia Railway Company. From the judgment of nonsuit plaintiff brings error. Affirmed.

It appeared that the view of a foot traveler approaching a railroad crossing was obstructed by a line of box cars on a side track, but that the traveler, without looking for a train after crossing the side track, and while between it and the main track, stepped onto the main track, and was immediately struck by an engine of a freight train running at the rate of 15 miles an hour. Held, that a nonsuit was proper.

The following is the official report:

Ashworth sued the railway company for damages. Two verdicts in his favor have been rendered, both of which were set aside by the court below. To the grant of a second new trial plaintiff excepted, and the supreme court held said ruling not error. 94 Ga. 715, 20 S.E. 424. On the third trial the court granted a nonsuit, and plaintiff excepted. The grounds of the motion for nonsuit were that the testimony failed to show any negligence on the part of defendant's servants, and that even if they were negligent, plaintiff could have avoided the consequences of such negligence by ordinary care and diligence.

Plaintiff testified: "September 6, 1890, I started from Rome, a little before sundown, to my home, about five miles from the city, in company with Wofford and Shrimpshire. We went to the lower end of Broad street, walked out on defendant's railroad, and crossed the Etowah river bridge. We remained on the railroad until we struck the point where the Silver Creek public road crosses the railroad; then took the public road and went to Holder's store, which is about a half mile to the left of the railroad, going south. We remained at Holder's store a little while; then took the road or street that leads from the Silver Creek public road to the Cave Spring road. The road we took was used for a public passway. It was my understanding that it was a street; that over it the dummy line ran; that the street and dummy line crossed defendant's track. Plank are laid about sixteen feet long; don't know how wide; but clear across the main line and side tracks. Just before reaching that point, I stopped and listened for an approaching train, but neither saw nor heard any. I walked on, and just before stepping on the main line of defendant's track, I listened and looked northward toward Rome, and did not see nor hear any train. I looked southward, but could not see, for box cars defendant had left standing on its side tracks, which protruded over the plank crossing. When I stepped upon the main line I was looking toward Rome, and on turning my head I noticed for the first time the engine right on me. I wheeled to jump in the direction from which I came, but was at that moment hit by the engine, and knocked about twenty feet off to the left of the main line, going north. The crossing is perhaps three or four hundred yards from where the Silver Creek public road crosses the railway track. There was one blow post on the left of the dummy line going west, and east of the defendant's main line going north, about twenty yards from the crossing. There is a furnace on the leftside of the dummy line going west, and east side of the main line of the railroad going north, about fifty yards from the crossing. There are also two side tracks belonging to defendant that extend from the Atlanta junction to some distance above the crossing; I think, a little up grade from the crossing. I saw a line of box cars standing on the side track that was on the side from which I was approaching. I don't know how many, but one protruded up over the crossing. I don't know how far it was from the side track to the main line. That box car protruded perhaps a foot over the rail on the roadbed. I don't know whether there was room for a person to stand between the said car and the main line when a moving train is passing over the main line, before reaching the main line. No whistle was blown nor bell rung. The train was moving about fifteen miles...

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1 cases
  • Ashworth v. East Tenn.
    • United States
    • Supreme Court of Georgia
    • August 12, 1895
    ...23 S.E. 8697 Ga. 306ASHWORTHv.EAST TENNESSEE, v.& G. RY. CO.Supreme Court of Georgia.Aug. 12, 1895.        Injury to Person on Track — Contributory Negligence —Nonsuit.        Without regard to the question of the defendant's negligence, the evidence introduced . by the plaintiff showing clearly that by the exercise of ......

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