Dowdy v. Georgia 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

February 15, 1892

Syllabus by the Court.

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.

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."

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.

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. Judgment affirmed on main bill; cross bill dismissed.

John C. Hart, for plaintiff in error.

J. B. Cumming and Bryan Cumming, for defendant in error.

PER CURIAM.

Judgment affirmed on the main bill; cross bill dismissed.

BLECKLEY, C.J., dissenting.