Baston v. The Ga. R.R.

• Decision Date: 31 January 1878
• Citation: 60 Ga. 339
• Parties: Baston. v. The Georgia Railroad.
• Court: Georgia Supreme Court

60 Ga. 339

Baston. v. The Georgia Railroad.

Supreme Court of the State of Georgia

(January Term, 1878.)

Railroads. Presumptions. Negligence. Before Judge Gibson. Columbia Superior Court. March Term, 1877.

Reported in the opinion.

*T. & J. L. Oakman, by W. D. Ells, for plaintiff in error.

Barnes & Cumming, for defendant.

Jackson, Judge.

The single question made by this record arises upon a demurrer to the plaintiff's declaration, which demurrer was sustained and the action dismissed.

The declaration was to the effect that the plaintiff was upon defendant's line of railway by its consent, walking on the track at a certain point, about nine o'clock at night, when defendant's train of freight cars came behind him in the dark; that he stepped some six or seven feet from the track on one side, far enough ordinarily to be secure from danger from the running of the train, but was prevented from getting still further by a hedge or thicket of briers left growing on the defendant's right of way; that several of the trains passed him in entire safety to himself, when a piece of timber projecting from one of the rear trains, struck him in the head, felled him to the ground, badly injured him; and that this injury was the result of gross negligence on the part of defendant in loading its cars with freight in such an unusual manner, and in permitting the piece of timber to project so far off of the track of its road.

Taking these allegations to be true, the plaintiff would be entitled to recover. Even a trespasser upon the track of a railroad is entitled to be protected from gross negligence. Human life is sacred, and if a human form appear on the road walking or sitting or lying down, some effort should be made to save life. But this is the case of man going from one point to another on the track of the road by its consent, and who, therefore, is not a trespasser, but was entitled to greater consideration thana mere trespasser would be entitled to claim. Having got off the track six or seven *feet—far enough to be safe where the cars were loaded as usual and the freight did not project—he had a right to suppose that he was safe; and it proved to be the case that he was safe when several trains passed him and until this train, loaded in an unusual manner, with timbers projecting more than six or seven feet from the track, struck him and inflicted the damage upon him by gross negligence on defendant\'s part.

Section 3033 of our Code is in these words: "A railroad...