Briscoe v. Southern Ry. Co.

• Decision Date: 21 December 1897
• Citation: 28 S.E. 638,103 Ga. 224
• Parties: BRISCOE v. SOUTHERN RY. CO
• Court: Georgia Supreme Court

28 S.E. 638

103 Ga. 224

BRISCOE v. SOUTHERN RY. CO

Supreme Court of Georgia

December 21, 1897

Syllabus by the Court.

1. No one is entitled to relief from the consequences of neglecting to exercise ordinary care for his own protection and safety because failure to do so arose from an emergency brought about by his own act in voluntarily placing himself in a situation of peril.

2. The evidence showing that the plaintiff, by ordinary care, could have avoided the injuries of which he complains, he was not entitled to recover, though the defendant was in some respects negligent; and consequently there was no error in granting a nonsuit.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by Henry Briscoe against the Southern Railway Company for injuries sustained. From a judgment of nonsuit, plaintiff brings error. Affirmed.

Glenn & Rountree, for plaintiff in error.

Dorsey Brewster & Howell, for defendant in error.

LUMPKIN. P.J.

Butler street, in the city of Atlanta, is spanned by a railway bridge which connects two portions of a high embankment. Upon this embankment, and across this bridge, are laid a number of railway tracks, two of which were used by the Southern Railway Company, during the continuance of the Cotton States and International Exposition, for running trains carrying passengers between the city and the exposition grounds. For convenience, these two tracks will hereinafter be designated as the "exposition tracks." That one of them which was on the northern side or margin of the embankment was used for incoming trains, and the one immediately south of it for outgoing trains, there being between the two tracks a space of some six or eight feet. These trains passed every few minutes in either direction. The other tracks upon the embankment were in constant use for the switching and moving of cars and engines. The spaces lying between and adjacent to all of these tracks were constantly used as footways by large numbers of pedestrians, not, however, by any express permission from the Georgia Railroad & Banking Company, to whom all the tracks belonged, or from the Southern Railway Company, which, under a contract with the Georgia Company was using two of them in the manner above stated. Briscoe the plaintiff in the present case, was perfectly familiar with all the facts above recited. On the night of September 30, 1895, he came up Butler street, and walked upon the embankment, intending to cross the exposition tracks, and also other tracks to the southward of these, for the purpose of mailing a letter in a mail car which was standing upon one of the latter. He succeeded in crossing the first exposition track, and was about to cross the second when he observed upon it a train coming towards him; and, in order to avoid being struck by it, he walked backward, towards the first exposition track, without looking to see whether a train was coming upon it from the direction of the exposition grounds. Just as he was stepping over the ends of the crossties or iron rail of this track, he was struck and seriously injured by an incoming train. There was evidence tending to show that this train was running very rapidly, and at a speed forbidden by a city ordinance. There was also other evidence tending to show that the engineer upon this train might, possibly, have seen the plaintiff...