Bryson v. Southern Ry. Co

• Citation: 59 S.E. 1124,3 Ga.App. 407
• Decision Date: 15 January 1908
• Docket Number: (No. 765.)
• Parties: BRYSON. v. SOUTHERN RY. CO.
• Court: United States Court of Appeals (Georgia)

59 S.E. 1124

3 Ga.App. 407

BRYSON.

v.SOUTHERN RY. CO.

(No. 765.)

Court of Appeals of Georgia.

Jan. 15, 1908.

1. Railroads — Accident at Crossing—Defenses.

When those in charge of a railway train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured, the only defenses open to the company are that the injury was done by the consent of the person injured, or that by the observance of ordinary care he could have avoided the injury, or, in mitigation of damages, that his negligence contributed to it. "When such injury occurs, the onus is upon the company to prove such default on the part of the injured person."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1117-1123.]

2. Same.

A railway side track which crosses a public highway is included within the purview of the crossing statute.

3. Same—Contributory Negligence.

In this state it is not per se negligent for one not aware of the approach of the train tc attempt to cross the track without stopping, looking, or listening.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1305-1310, 1379.]

(Syllabus by the Court.)

Error from City Court of Dalton; J. A. Longley, Judge.

Action by W. H. Bryson against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

G. G. Glenn and W. E. Mann, for plaintiff in error.

Maddox, McCamy & Shumate, for defendant in error.

POWELL, J. Bryson, an old man, was struck and injured by a train of the Southern Railway Company upon a public crossing near its station in the village of Varnells in Whitfield county. He brought suit for damages; the specific acts of negligence alleged being that the train ran over the crossing at a high rate of speed, and that it violated the crossing statute by not blowing the whistle, ringing the bell, or checking the speed of the train. The plaintiff testified that he was on the east side of the track, desiring to cross to the west. A water tank stood just below the crossing. On the main line, which was nearest him as he approached, were two trains headed north. One had just taken water and had gone forward, clearing the crossing, and the other was coming on up toward the tank as if to take water. He crossed the main line just behind the first train and just ahead of the second. His attention was directed toward this second train, and he stepped off the main line track and onto a parallel side track six or eight feet further west, without looking up the side track to the north. A train happened to be coming south on the side track at a rapid rate of speed. This south-bound train struck him. He did not hear it blow the whistle or ring the bell. He did not see it till it struck him, but admitted that, if he had turned his head north as he was about to step upon the side track, he could have seen it. His excuse for not hearing the approach of the south-bound train was the noise the two other trains were making; and his excuse for not looking up the side track was that he was watching the approach of the north-bound train on the main track. He showed the extent of his injuries. At the conclusion of the plaintiff's testimony the court awarded a nonsuit, and the plaintiff excepted.

1. Clearly the grant of a nonsuit was error. When the plaintiff proved that he was Injured by the train, the law at once presumed that the railway company was negligent in every respect alleged, that it was running Its train at a high and excessive rate of speed, that it gave no warning by ringing the bell and blowing the whistle, and that it did not check for the crossing. Harden v. Georgia R. Co. (this day decided) 59 S. E. 1122. When a train approaches a public crossing without complying with the statute, and strikes or injures a passer thereon, the only defenses open to the railway company are that the injury was done by the consent of the person injured, or that by the observance of ordinary care he could have avoided the injury, or, in mitigation of the damages, that his negligence contributed to it. Atlanta & West Point R. Co. v. Newton, 85 Ga. 517, 11 S. E. 776; Central Ry. Co. v. Hall, 109 Ga. 367, 370, 34 S. E. 605; Bowen v. Gainesville R. Co., 95 Ga. 688, 22 S. E. 695. "When such injury occurs, the onus is upon the...