Central R. & Banking Co. v. Smith

• Decision Date: 26 March 1887
• Citation: 3 S.E. 397,78 Ga. 694
• Parties: CENTRAL R. R. & BANKING Co. v. SMITH.
• Court: Georgia Supreme Court

3 S.E. 397

78 Ga. 694

CENTRAL R. R. & BANKING Co. v. SMITH.

Supreme Court of Georgia

March 26, 1887

Appeal from superior court, Clayton county; RICHARD H. CLARK, Judge.

A. R. Lawton, John D. Stewart, W. L. Watterson, and John I. Hall, for plaintiff in error.

Spence & Stewart, C. W. Hodnett, and R. T. Dorsey, for defendant.

BLECKLEY C.J.

Smith recovered against the Central Railroad Company heavy damages for a personal injury. The railroad company made a motion for a new trial, and it was overruled. One of the grounds of the motion was that the judge instructed the jury that, if there was a failure to check the speed of the train, and ring the bell at a crossing within the limits of the town of Jonesboro, it was negligence; also that a failure to observe an ordinance of the town as to the rate of speed, if they found there was such an ordinance, (which question he referred to the jury,) would be negligence. He charged them touching that ordinance as if it applied to the whole town whereas, in looking to the record, we find that the ordinance applies only to the crossings within the town. It was not an ordinance limiting the rate of speed in running all the way from one corporation line to the other, but simply limiting the rate of speed to not exceeding 10 miles an hour on the crossings.

1. The omission of specific acts of diligence prescribed by statute or by a valid municipal ordinance, is negligence per se; and the court may so instruct the jury. While negligence is always a question of fact when the law is silent touching the specific act done or left undone, yet where a statute expressly enjoins an act, the act is then within all degrees of diligence, even the very lowest, and its omission is negligence as matter of law. Whether the prescribed act was done or not in the given case is, of course, by its very nature, a question of fact; but whether it should or should not have been done, the statute settles by prescribing it as a duty. Railroad Co. v. Wyly, 65 Ga. 120; Code, § § 708, 710.

2. The next point we rule is that an ordinance limiting the rate of speed in passing over crossings to 10 miles an hour, does not imply that this rate is not to be exceeded between crossings. The injury occurred between crossings some 65 yards from the nearest; and the ordinance did not apply to that point; yet the judge instructed the jury that if at the time the injury occurred the rate of speed was more than 10 miles an hour, that would be negligence, provided there was an ordinance in evidence, (as there was,) applicable to the town of Jonesboro. This instruction was erroneous, because the ordinance did not apply to the place of the injury, the same not being a crossing.

3. The circumstances of the injury were very striking, and somewhat peculiar, considering that there was a recovery. Smith shortly before day, while it was still dark, got on the railroad track in Jonesboro at a crossing, and turned down the track, using it for a walk, and had gone only about 60 or 65 yards when the train, running at high speed, struck him, threw him off the track, crushed his leg, and injured him seriously. The evidence as to the negligence of the railroad company was somewhat conflicting, but there was an admitted failure to ring the bell when approaching and passing over the crossing. Smith, however, was not on the crossing, nor on that side of it which the engine was upon in approaching it; he was on the further side of the crossing. The train was probably running at a much higher rate of speed than it ought to have run so near to a crossing. There was some evidence tending to show that the speed was low; but grant that it was high, too high, and that there was very great negligence on the part of the railroad company, yet it is manifest that Smith was out of his place at the time he was injured. Grant that the track was often used by persons to walk along it; that there was no objection to such use; that Smith was there by implied or tacit license, -- he was there under circumstances that required him to have all his senses on the alert for trains, and to...