Duncan v. Rome St. R. Co.

• Decision Date: 19 May 1896
• Citation: 24 S.E. 953,99 Ga. 98
• Parties: DUNCAN v. ROME ST. R. CO.
• Court: Georgia Supreme Court

24 S.E. 953

99 Ga. 98

DUNCAN v. ROME ST. R. CO.

Supreme Court of Georgia

May 19, 1896

Syllabus by the Court.

Under the facts as they appear in the record, the court erred in granting a nonsuit.

Error from superior court, Floyd county; T. W. Milner, Judge.

Action by Joseph B. Duncan against the Rome Street-Railroad Company. There was a judgment of nonsuit, and plaintiff brings error. Reversed.

There being evidence, in an action for the death of a boy 14 years old, who was run down by an electric car while attempting to cross the tracks diagonally in front of the same at a street crossing, that the car did not stop at the crossing, and that no bell was rung until it was within a few feet of the boy and that the motorman would have seen the boy in time to have prevented the accident had he been looking ahead, instead of standing half turned, talking to a passenger, it was proper to refuse a nonsuit.

The following is the official report:

Duncan sued the Rome Street-Railroad Company for damages for the homicide of his 13 year old son. The nature of his action will sufficiently appear from the report of the evidence hereinafter. At the conclusion of the evidence for plaintiff defendant moved for a nonsuit upon the grounds: (1) That the killing was an unavoidable accident; (2) that the evidence showed that defendant exercised all ordinary and reasonable care and diligence; (3) that the evidence showed that the deceased could have avoided the injury by the exercise of ordinary care; (4) that the evidence failed to show that plaintiff was dependent upon deceased, and that the latter contributed to his father's support. The motion was sustained, and to this ruling plaintiff excepted.

W. A Bishop testified: "While at Hardin's stable, in Rome, early on the morning of June 28, 1893, I saw an electric car run over young Duncan. He was run over 14 or 15 feet up the street from the crossing that goes to Kutner's store,--a regular crossing over Broad street. I saw the car as it came around the corner. It stopped at Griffin's, and Mr. Farrell got on. The car started off and the motorman sorter turned around, and was talking to Farrell, and when the car got about to the crossing he commenced to ring the bell on the car, and I saw this little boy right in front of him. I think it was not more than 14 or 15 feet from the point where he began to ring the bell till he hit the boy. I think the reason the motorman did not see the boy sooner was that he was not looking. He was looking sorter sideways, sorter turned around talking to Farrell. The car was going, I think, 12 or 15 miles per hour. I have worked about two years for a railway company, and, judging from the way a locomotive runs, I think this car was going at the speed I have mentioned. It ran about 30 feet after striking the boy. I do not think the car came to a standstill where Farrell got on, but slacked up, and he jumped on. I suppose it was 60 or 70 feet from the stable door where I was to the car track where Farrell got on. I think Broad street is about 100 feet wide, and that the track is a little north of the center of the street. The boy was going from the opposite side of the street towards the side I was on, but when I first saw him he was going back the other way. He had dropped something. I only supposed he had come first from the other side. Did not see him do so. It looked to be about 14 feet from the crossing to where he went on the track. I did not see him turn and go back on the track. When I first saw him he was going from south side to north side, away from me. He was only a few steps from the car. He was about the middle of the track, going sorter angling across it. The car hit a moment after I saw him. Am not positive whether he was on or just going on the track when I saw him first. The whole thing occurred in a second. The motorman was on front end--north end--of car, which was a summer car, and I could see through it, and see the motorman all the time, even after the car passed me. I saw him at the time the accident occurred. Cannot say that he was talking to Farrell just then. He was just before. Thinking that he ought to be looking to his business instead of talking, I was watching him. If I hadn't, would have seen the boy sooner. Motorman was turned to left side talking to Farrell, and did this until he was right on the boy. The car was about on or right on crossing when bell rang. A car running 15 miles an hour would run 14 feet nearly as quick as thought. I heard the bell ring several times, but can't tell how many. Suppose he had turned on his brake, and threw off the electricity. I have run on a train and coupled cars, but never ran engine or train."

Plaintiff testified: "My...