Cent. R.R. v. Brinson

• Decision Date: 28 February 1883
• Citation: 70 Ga. 207
• Court: Georgia Supreme Court
• Parties: Central Railroad. vs. Brinson, by next friend.

70 Ga. 207

Central Railroad. vs. Brinson, by next friend.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

[Two justices presiding. Argued at the last term, and decision reserved. The head-notes below report the views of Justice Hall and Chief Justice Jackson, respectively.]

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Railroads. Damages. Negligence. Torts. Minors. Infants. Trespassers. Before Judge Snead. Burke Superior Court. November Term, 1881.

Jefferson Brinson, a minor, represented by his father and next friend, James Brinson, brought his action for damages against the Central Railroad. His declaration alleged that in February, 1877, the Central Railroad being the lessee of the Augusta and Savannah Railroad, and operating it, had so carelessly and negligently loaded and run its engine and cars in the county of Burke that they ran over and crushed the foot and ankle of plaintiff, causing him to lose the same and otherwise injuring him. Damages were laid at $20,000. Defendant pleaded the general issue.

On the trial, the evidence for the plaintiff showed, in brief, the following facts:

Plaintiff was a boy fifteen years of age, living in the town of Lawtonville, Burke county. He attended school on the opposite side of the town from that where he lived, and about three miles distant from his home. He fre-quently walked to school, and in doing this he was accustomed to walk along the track of the A. and S. R. R., which was leased and operated by the C. R. R. There was a dirt road running along the line of defendant\'s right of way, but it was not suitable for the use of foot passengers, and in winter was muddy and almost impassable. Near the school house there was a culvert under the railroad, which had become partly stopped up, causing a pool of water to collect and rendering the road unsuitable for walking. It was the common custom of persons passing through Lawtonville on foot to walk along the railroad track. Not far from the school house the railroad was elevated above the ordinary level of the ground, and ran along an embankment about six feet in height. On the morning of February 7, 1877, plaintiff, in company with a girl who was attending the same school, was walking along the track towards the school house. When within about two or three hundred yards of his destination, and mid-way between a switch and the point where the wagon road crossed the railroad, being about twenty yards from each, he saw a wood train approaching him. It was about two or three hundred yards distant. The track was straight for about a mile, and there was nothing to prevent seeing the train. When the train had arrived within from twenty-five to forty yards of plaintiff, he stepped off the track on to the embankment, as did also his companion. At this point the embankment was about four or five feet wide outside of the track. Plaintiff moved some three feet from the track to allow the train to pass. His companion was a little in front of him and slightly further from the track. She was also not so tall as he. The train was composed of four or five box cars and several open flat cars, the box cars being next to the engine, the flat cars following, and the conductor\'s cab being last. There was nothing to prevent the conductor from seeing the entire train. It was running at a very rapid speed; more rapidly than usual. The rate was estimated at fromtwenty to thirty miles per hour. The engine and box cars passed plaintiff without injury to him. Plaintiff was watching the passing cars when a flat car near the middle of the train approached him, and he noticed a piece of plank or timber projecting from it. He at once dodged, and endeavored to escape the blow which he saw was imminent, but it was impossible to do so, and the plank struck him on the head, knocking him down, and his right foot and ankle were crushed. The plank which caused the injury was about nine or ten inches wide, two or two and a half inches thick, and eighteen or twenty feet long. It projected six or eight feet beyond the side of the car. After striking plaintiff, it struck the upright iron switch a short distance beyond him, with such force as to bend it over. This switch was situated from four to six feet from the track, and by the force of the collision between it and the plank, the latter was knocked from the train and stuck in the ground. An indentation was found in the plank, variously estimated to be from three to six feet from the end of it. When the train passed Perkins\' junction, about two and a quarter miles from Lawtonville, before the accident happened, the plank was seen to be projecting three to five feet from the car, by two or three witnesses. One of the parties who saw it motioned to some one on the train and hallooed, but nothing was done in regard to it. No whistle was blown or signal given before the accident occurred. Plaintiff could have left the embankment entirely before the train reached him, but moved to a distance which he considered safe, and where the train, ordinarily loaded, would have passed him without injury. The wagon road which crossed the railroad was one in common use, and had a plank crossing over the railroad track kept in repair by the railroad, but there was no sign-board at such crossing. There was a signal post about three hundred yards beyond the point where the accident occurred. By reason of the injury, plaintiff was confined to his bed for a number of weeks; was compelled to have his legamputated, suffering great pain from it; his health was impaired, and he was rendered permanently unfit for any active business which would require walking or standing.

The evidence for the defendant was, in brief, as follows:

The train in connection with which the accident occurred was a wood train going from Augusta to a point above Millen for wood. It was composed of three box cars next to the engine, twelve empty flat cars, and the cab. It was not the habit of wood trains to stop at Lawtonville unless there were cars to be left there, which was not the case that morning. It was a dark and foggy morning, and the conductor could not see the piece of timber from the cab, it being ten cars distant from him, and the standards being up in the ends of the flat cars. He kept the usual lookout, and observed the usual precautions. The average speed, according to schedule for that train, was from fifteen to eighteen miles per hour. On account of the darkness of the morning, and foggy state of the weather, the train was running a little slower than usual. There was a light down grade at the point where the accident occurred, extending about three-quarters of a mile. As the train neared the school house, the engineer saw some children on the track, and opened the cylinder cock for the purpose of letting off steam and scaring them off. He also saw the plaintiff and the young lady with whom he was just above the switch on the track. They stepped from the track, the engine passed them, and the engineer knew nothing of the accident until sometime afterwards. When they stepped from the track the girl or young lady was farthest from the train. The plaintiff was very close to the cars, being within a foot or a foot and a half of them. The iron stirrups into which standards are inserted on flat cars, project about five inches from the side of the cars and to or beyond the ends of the cross-ties. Two or three of the persons on the train noticed that plaintiff was very close to the track, and one of them remarked upon it. The conductor saw plaintiff very close to the cars, saw himfall, did not know the cause of it, but thought that he had been struck by one of the standards. Plaintiff got up almost immediately upon falling, and the conductor did not think that he was injured. The right of way of the railroad is one hundred and fifty feet in width and belongs to the company. The railroad was built before the village of Lawtonville was in existence. Sometimes freight projects beyond the side of the cars, and sometimes wood projects a foot or two. On one occasion a large wheel was carried over this track which projected two or three feet beyond the edges of the car. On two previous occasions, while walking on the track, plaintiff had delayed in getting off until the train was very close to him, so as to cause complaint from the section-master and on one occasion compelling him to slacken the speed of the train. The conductor saw a man motioning to him at Perkins\' station, but as the same person had previously spoken to him about obtaining some cars, he thought the sign had reference to that. On a previous trial of this case, plaintiff swore that he was looking to the side of the car passing, and happening to turn his head, saw the piece of timber projecting from the open car.

The jury found for the plaintiff $11,500. Defendant moved for a new trial on the following grounds:

(1.) Because the verdict is contrary to the following charge of the court: " The plaintiff is bound to make out his own entire case by testimony, so far as regards himself and defendant. If he fails to do so in any particular, he cannot recover."

(2.) Because the verdict is contrary to the following charge of the court: " If the railroad company, or its employes, were negligent at the time of this accident, yet if that negligence did not cause or contribute to the injury of this plaintiff, he cannot recover on that ground."

(3.) Because the verdict is contrary to the following charge of the court: " If the engineer failed to blow the whistle or ring the bell, and even thus violate the statute, yet if Brinson, plaintiff, had all the notice of the approach of the train, by actually seeing it, which he would have had by the whistle or the bell, then he cannot recover on that ground."

(4.) Because the verdict of the jury is contrary to the following charge of the court: "Even though the officers and agents of the railroad company...