Atlanta & C.A.L. Ry. Co. v. Leach

• Decision Date: 27 March 1893
• Citation: 17 S.E. 619,91 Ga. 419
• Parties: ATLANTA & C. A. L. RY. CO. v. LEACH.
• Court: Georgia Supreme Court

17 S.E. 619

91 Ga. 419

ATLANTA & C. A. L. RY. CO. v. LEACH.

Supreme Court of Georgia

March 27, 1893

Syllabus by the Court.

1. The homicide of a person walking upon a railroad track between a blow post and a public crossing, when affirmatively shown not to have resulted from wantonness or recklessness on the part of the locomotive engineer after the peril was discovered is, at most, a negligent homicide only; and where the perilous situation was caused by the gross negligence of the deceased, and he could, by the exercise of ordinary care have protected himself, the company is not liable.

2. Where a person who was killed because of his own gross negligence not only exposed himself by going upon a high trestle over which the railroad track passed, but incumbered himself with a small boy, exposing him also, if such person could have saved himself after discovering his danger from an approaching train, had he not been so incumbered, and his care for the boy was the chief reason why he did not succeed in protecting himself, he was nevertheless chargeable with ordinary care for his own safety, irrespective of the presence of the boy. The case stands as if he (the deceased) had been upon the trestle alone, since it cannot be an excuse for him, as against the railroad company, that he neglected his own safety to preserve the boy, with the care of whom he had voluntarily incumbered himself.

3. The evidence showing that the plaintiff was not entitled to recover, the court erred in not granting a new trial.

Error from superior court, Hall county; C.J. Wellborn, Judge.

Action by Ada Jane Leach against the Atlanta & Charlotte Air-Line Railway Company to recover for the death of plaintiff's husband. Judgment for plaintiff. Defendant brings error. Reversed.

Jackson Barrow & Thomas, S.C. Dunlap, and W. F. Findley, for plaintiff in error.

M. L. Smith, J. B. Estes, and H. H. Dean, for defendant in error.

LUMPKIN J.

1. It is the grossest kind of negligence to walk upon a long and very high trestle of a railroad, over which trains are constantly passing. The exercise of ordinary care and prudence would have prevented the plaintiff's husband from exposing himself to danger by going upon the trestle and, even after he went upon it, he might, after becoming aware of the approaching train, have saved himself, if he had not incumbered himself with the care of a small boy. The evidence shows that the company's servants did all in their power to stop the train after seeing the man and boy on the trestle, and...