Comer v. Barfield

• Court: Georgia Supreme Court
• Writing for the Court: FISH, J.
• Citation: Comer v. Barfield, 102 Ga. 485, 31 S.E. 89 (Ga. 1897)
• Decision Date: 05 August 1897
• Parties: COMER et al. v. BARFIELD.

31 S.E. 89

102 Ga. 485

COMER et al. v. BARFIELD.

Supreme Court of Georgia

August 5, 1897

Syllabus by the Court.

1. Though a traveler upon a public highway in approaching a railroad crossing may not observe that amount of care and diligence which would be exercised under like circumstances by an ordinarily prudent person, he is not necessarily precluded from recovering for injuries to his person or property received on the crossing, if, after it is apparent that the engineer of the company is disobeying the provisions of section 2222 of the Civil Code, he then exercises ordinary care and diligence in endeavoring to escape the consequences of the company's negligence.

2. The charge complained of in the present case was substantially in accord with the law as above announced, and the evidence warranted the verdict.

Error from superior court, Spalding county; M. W. Beck, Judge.

Action by N. G. Barfield against H. M. Comer and others, receivers. Judgment for plaintiff. Defendants bring error. Affirmed.

Hall & Boynton, for plaintiffs in error.

Hammond & Cleveland and T. E. Patterson, for defendant in error.

FISH J.

1. It is provided by section 2322 of the Civil Code that: "No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him." Section 3830 declares that "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." Construing these two sections in pari materia, this court, in Railroad Co. v. Luckie, 87 Ga. 6, 13 S.E. 105 speaking through Mr. Justice Lumpkin, said: "It seems to be the clear meaning of our law that the plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows that he could ordinary care after the negligence of the defendant began or was existing, have avoided the consequences to himself of that negligence. The law also clearly contemplates cases in which, while the plaintiffs to some extent negligent, he nevertheless could not, by using ordinary care, have avoided an injury resulting from defendant's negligence. Of course, there can be no recovery when the defendant is entirely free from negligence, and uses all proper care to prevent injury. The law of contributory negligence is applicable only where both parties are at fault, and when, also, the plaintiff could not by ordinary care have avoided the injury which defendant's negligence produced." The rule thus evolved was approved and followed in the later case of Railroad Co. v. Gibson, 97 Ga. 489, 25 S.E. 484. Its application to a case wherein it appears that a traveler upon a public highway was injured at a railway crossing under circumstances suggesting a doubt whether his own contributory negligence, in failing to take the necessary precautions to insure his safety, is to be regarded as the proximate or efficient cause of his injury, must, of course, depend largely upon the character and degree of the negligence with which the railway company is charged. In this connection it is important to note the duty, relatively to a traveler on a public highway, which devolves upon the company of observing extra precautions in order to avoid casualties at grade crossings. Section 2222 of our Civil Code provides for the erection of "blow posts" by the company upon its right of way, at a distance of 400 yards from, and on either side of, every public road crossing, and declares that the company's "engineer shall be required, whenever he shall arrive at...