Clardy v. Southern Ry. Co.

• Decision Date: 27 October 1900
• Citation: 37 S.E. 99,112 Ga. 37
• Parties: CLARDY v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

37 S.E. 99

112 Ga. 37

CLARDY v. SOUTHERN RY. CO.

Supreme Court of Georgia

October 27, 1900

Syllabus by the Court.

A railway company is not liable to a pedestrian who, even as a licensee, uses its right of way as a footpath, for injuries occasioned by a blow from a stone which formed a portion of the ballast of the company's track, and which was casually dislodged from its place therein and hurled against him by a passing train.

Error from superior court, Gordon county; A. W. Fite, Judge.

Action by Henry Clardy against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

F. A Cantrell, W. R. Rankin, and J. M. Neel, for plaintiff in error.

Shumate & Maddox, for defendant in error.

LUMPKIN P.J.

The plaintiff in error excepted to the granting of a nonsuit. The evidence discloses that while walking along the right of way of the railway company he was injured by a piece of stone which was hurled against him by a passing train. This stone constituted a part of the ballast of the track, and was dislodged from its place therein, and thrown against the plaintiff, by the movement of the train. It further appeared that the place at which the injury was sustained was generally used by pedestrians as a footway. The plaintiff's theory was that, being a licensee, the railway company owed him the duty of so placing the material used in ballasting its track that it would not be thrown against him in the manner stated. It is not entirely clear to our minds that the plaintiff, on the occasion when he was hurt, was in any better position than that of a mere trespasser. But, granting that he should be regarded as a licensee, and that accordingly he was using the right of way under some sort of an implied invitation to do so, we are still confident that the judgment of nonsuit was right. Certainly it cannot be claimed that, under the facts appearing, it was incumbent on the railway company relatively to the plaintiff's protection from injury, to exercise more than ordinary diligence. The dislodgment of the stone was a mere casualty. Other trains had passed over the spot where it lay without dislodging it from its place, and even under the theory that the company was under any duty at all of protecting pedestrians from being injured as the plaintiff was, it would at least have to appear that the company was wanting in ordinary care and prudence as to the manner in which its...