Comer v. Shaw

• Decision Date: 08 June 1896
• Citation: 25 S.E. 733,98 Ga. 543
• Parties: COMER et al. v. SHAW et al.
• Court: Georgia Supreme Court

25 S.E. 733

98 Ga. 543

COMER et al. v. SHAW et al.

Supreme Court of Georgia

June 8, 1896

Syllabus by the Court.

1. The provisions of section 708 of the Code have no application except to crossings where a public road established pursuant to law crosses the track of a railroad; and, consequently the statutory duties of blowing the whistle of the locomotive, and checking the speed of the train, are not incumbent upon an engineer when approaching the intersection with a railroad of a road which, though to a greater or less extent used by the public, has never been established as a public road in the manner pointed out by law. It follows that no one has a right to assume that, in approaching a crossing of the kind last indicated, an engineer will observe these statutory requirements, and that the omission to do so is not, in law, negligence per se.

2. Applying what is said above to the evidence in the present case, the verdict for the plaintiff cannot be lawfully upheld, it appearing from the undisputed facts that, by the exercise of ordinary care, the plaintiff's husband, for whose homicide the action was brought, could have avoided the collision which resulted in his death.

3. It is unnecessary to deal with many of the questions presented by the motion for a new trial and the bill of exceptions because, upon the substantial merits of the case, the only proper result would have been a verdict for the defendants.

Error from superior court, Muscogee county; W. B. Butt, Judge.

Action by Sarah V. C. Shaw and others against H. M. Comer and others, receivers. From a judgment for plaintiffs, defendants bring error. Reversed.

McNeill & Levy, for plaintiffs in error.

Sanford & Son and Wimbish & Worrill, for defendants in error.

SIMMONS C.J.

This was an action against the receivers of a railroad company to recover for the homicide of the plaintiff's husband, who was run over by a train operated by the defendants, while he was attempting to cross the track of the railroad. The collision occurred about a mile from the city of Columbus, at a place where the railroad was crossed by a road which was used to a considerable extent by the public, but which was not a public road, established in the mode prescribed by law. This being so, the provisions of section 708 of the Code touching the checking of the speed of trains and the giving of signals were not applicable. Code, § 706; Railroad Co v. Cox, 61 Ga. 455. Where a railroad crossing is in a populous locality, and is much used by the public, even though the provisions of this section are not applicable greater care is required of railroad companies with respect to speed and signals than is to be expected at places where the railroad is crossed by unfrequented country roads, not established by law as public roads; but noncompliance at such a place with the statutory requirements applicable to public roads established by law is not, as a...