23 S.E. 86 (Ga. 1895), Ashworth v. East Tennessee, V. & G. Ry. Co.

Citation:23 S.E. 86, 97 Ga. 306
Opinion Judge:PER CURIAM.
Attorney:Nat. Harris and Hal Wright, for plaintiff in error. McCutchen & Shumate, for defendant in error.
Case Date:August 12, 1895
Court:Supreme Court of Georgia

Page 86

23 S.E. 86 (Ga. 1895)

97 Ga. 306




Supreme Court of Georgia

August 12, 1895

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...

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