Dowdy v. Ga. R.R. & Banking Co

• Decision Date: 15 February 1892
• Citation: 16 S.E. 62,88 Ga. 726
• Parties: DOWDY. v. GEORGIA RAILROAD & BANKING CO. GEORGIA RAILROAD & BANKING CO. v. DOWDY.
• Court: Georgia Supreme Court

16 S.E. 62

88 Ga. 726

DOWDY.

v.GEORGIA RAILROAD & BANKING CO.

GEORGIA RAILROAD & BANKING CO.

v.DOWDY.

Supreme Court of Georgia.

Feb. 15, 1892.

Injury to Person on Railroad Track — Contributory Negligence—Rulings on Evidence.

1. The evidence showing that the plaintiff's husband could, by the exercise of ordinary care, have avoided being killed by the engine, she is not entitled to recover for his homicide, even though the defendant's engineer may have been in some degree negligent, and the court did not err in granting a nonsuit.

2. The court did right, on motion of defendant's counsel, to rule out the testimony of a witness that "the engineer had time to blow the whistle before the deceased was struck, " and in refusing to allow plaintiff's attorney to ask the witness "if the engineer didn't have time to signal the approach of the engine, and, had he done so, would the deceased not have had time to have gotten off the track;" the court ruling, "You can show all the facts, and it is for the jury to draw conclusions from the facts."

3. Per Bleckley, C. J., dissenting: Where a footman in daylight, at a place used by the public as a passway for 30 years, steps upon a railroad track in front of an engine, but long enough to walk upon the track 30 feet before he is run down and killed, it is a question for the jury whether it was wantonness in the engineer not to give a signal for him to get off.

(Syllabus by the Court.)

Error from superior court, Greene county; W. F. Jenkins, Judge.

Action by Victoria Dowdy against the Georgia Railroad & Banking Company for the wrongful death of plaintiff's husband. A nonsuit was granted, and plaintiff excepts. Defendant also excepts to the overruling of its demurrer to the declaration, on the ground that it set forth no cause of action; to the overruling of its objection to an amendment offered by the plaintiff, on the ground that there was no cause of action set forth in the declaration, and nothing to amend by; and to the overruling of its demurrer to the declaration as amended, on the ground that no cause of action was set forth.

Judgement affirmed on main bill; cross bill dismissed. The following is the official report: The declaration alleged that on July 1, 1890, at the time Dowdy was killed, he was on his way to the defendant's depot at Union Point, intending there to take its train as a passenger tq Athens, a station on its line of road, and in order to reach the depot he had to walk down its roadbed between the main-line track and a siding, the space between these tracks being the passway for passengers to use in approaching the depot, and the only way provided by the defendant for approaching its depot by persons residing in that portion of Union Point where Dowdy resided; that this space or passway had been used by the public for over 30 years with the full knowledge and consent of the defendant, and was as much frequented as any thoroughfare in the village; that the defendant had invited and encouraged the use of this walk or pass-way by the public, in placing steps at that end of its depot for the convenience of persons coming from that direction intending to board its train, and by placing at intervals crossings leading to this pass-way for the use and convenience of such persons; that it was necessary for Dowdy, in order to reach the depot, to cross one of the tracks next to it, and he was in the act of doing so when, without any fault or negligence on his part, he was knocked down and killed by the engine and cars of the defendant, which ran rapidly upon him from his rear until they were so close, when discovered, that he, not being aware of their approach, was unable to avoid the injury; that said injury was caused by the rapid and reckless running of the defendant's train known as the "fast train, "its speed being 25 or 30 miles per hour at a point near the do-pot; that the defendant's servants neglected and failed to blow the whistle or toll the bell of the locomotive, and to simultaneously check and keep checking the speed of the engine while approaching a public road crossing, within 200 yards of which Dowdy was killed; and that, had the defendant performed either of these statutory requirements, the accident could not have occurred. The amendment alleged that Dowdy was going to the defendant's depot, and had walked for 30 steps down the track, when he was struck by the train; that the defendant's employes and the engineer in charge of the train failed to warn him of his...