Cain v. Macon Consol. St. R. Co.

• Decision Date: 29 July 1895
• Citation: 22 S.E. 918,97 Ga. 298
• Parties: CAIN v. MACON CONSOLIDATED ST. R. CO.
• Court: Georgia Supreme Court

22 S.E. 918

97 Ga. 298

CAIN v. MACON CONSOLIDATED ST. R. CO.

Supreme Court of Georgia

July 29, 1895

Syllabus by the Court.

The evidence introduced by the plaintiff showing clearly that even if the defendant was negligent at all, the plaintiff after its negligence began, might, by the exercise of ordinary care, easily have avoided being injured, he was not entitled to recover. The court was therefore right in granting a nonsuit.

Error from city court of Macon; J. P. Ross, Judge.

Action by J. C. Cain against the Macon Consolidated Street-Railroad Company for personal injuries. To a judgment of nonsuit plaintiff brings error. Affirmed.

One who stepped on the track of an electric railway without looking for cars, and, on hearing the bell of an approaching car failed to quickly step out of the way, could not recover for injuries received from being thrown from the track.

The following is the official report:

Cain sued the street-railroad company for damages from personal injuries, which he alleged he sustained by being struck by one of its electric cars, running at a high rate of speed along Main street, in Macon, where Elm street crosses Main street. He alleged, among other things, that the car was operated at the time by a motorman alone, who was making change for passengers, and neglecting, for the time being, his duties as motorman; and that no signal was given of the approach of the car until it was too close to petitioner for him to escape. After the introduction of the evidence for plaintiff a nonsuit was moved for and granted, to which ruling plaintiff excepted.

Plaintiff testified: "I live on Elm street, a public street in East Macon. On May 5, 1894, I went down Elm street, and had to cross the street-railroad track. I was going slowly, just as I could, with my head hung down, like I do, especially when by myself; and when I stepped up on the railroad track with my left foot first (as to whether I made any other step or not I don't know), I caught the sound of the car gong or bell. I heard no car running, and, hearing none, I was not thinking about any at that time. The wind was blowing very hard in a direction opposite that the car was going, and I was infront of the car, and stepped on the track. The car was so near me when I heard the going I could not get out of the way. I am unable to say what effort I made to get out of the way. Presume I tried to get off the track, but can't say positively, for this reason: that when I caught the sound of the car bell I flung up my eye, understanding what the bell was, but the car was so near on me I saw I could not get out of the way, and was bound to get hurt. I flung up my right hand against the car, but what effort I made to get out of the way I do not pretend to say, because I don't know. It was impossible for me to get out of the way after I discovered the car. After I threw up my hand, the car struck it first, and then my right side, and knocked me off the track some fifteen feet. McCrary and the motorman picked me up. I did not hear any car, and was not expecting any. From the direction which the car was coming it would not have struck me on the left shoulder. In my effort to get out of the way I did not turn completely around. It could not have struck me on the left shoulder, as it was on my right hand, and on a square crossing; a public crossing on a street kept up by the city. The street-car track runs down Main street, and I was walking squarely across the street and track. The bank on which the track is laid is elevated a little. When I put my foot on the track my head was down, and I was in a brown study, reflecting about something. I did not look up and down the street. It was between nine and ten o'clock in the morning. The street runs straight, and a man could see a car with ease if he were looking up. I knew that car operated on the track every day. I don't know whether I made any effort to get off or not, because my mind was stricken with the fact that I was bound to get hurt. The sound of the gong aroused me from my brown study, and I recognized what it was when I heard it. I could not tell how long it had been sounding before I raised my head. I only caught one sound. I do not know how long it might have been ringing, and do not know how the stroke flung me, but suppose it knocked me sideways. It was the front end of the car which struck me, fairly on the shoulder and right side. A policeman approached me when I was on my way home, and asked if I wanted a case made against the motorman, and I told him, 'No,' but do not remember saying that the motorman was not to blame. My reason for not wanting a case made against the motorman was that it would not have benefited me to have him arrested and fined. In my judgment, the car was running at the rate of six miles an hour, but I can't explain how I formed this...