Hall v. Western & A. R. Co

• Decision Date: 14 June 1905
• Citation: 51 S.E. 311,123 Ga. 213
• Court: Georgia Supreme Court
• Parties: HALL. v. WESTERN & A. R. CO.

123 Ga. 213

51 S.E. 311

HALL.

v.WESTERN & A. R. CO.

Supreme Court of Georgia.

June 14, 1905.

Railroads—Trespasser on Right of Wat-Evidence.

The only duty which a railroad company owes to a trespasser on its right of way is to observe ordinary diligence to avoid injuring him after his presence thereon becomes known to the employés in charge of the train. Consequently, in a suit by a widow for the homicide of her husband, where it appeared from the undisputed evidence that the deceased was a trespasser; that he went upon the railroad track in an intoxicated condition; that shortly thereafter his dead body was found near the track, wounded in such a manner as to indicate that he had been struck by a passing train while lying down on or near the track; and that the employés of the defendant in charge of the train which was supposed to have struck him never at any time saw him on the track or right of way, and did not learn until a considerable time afterwards that he had been killed—it was not error to direct a verdict for the defendant.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1238, 1239.]

(Syllabus by the Court.)

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by Elizabeth Hall against the Western & Atlantic Railroad Company. Affirmed.

W. C. Martin and Cantrell & Ramsaur, for plaintiff in error.

R. J. & J. McCaniy, for defendant in error.

CANDLER, J. There is no dispute as to the material facts brought out by the evidence. The plaintiff's husband, for whose homicide she sued, went upon the right of way of the defendant company in an intoxicated condition, and proceeded to walk along the track. This was between 2 and 3 o'clock in the afternoon. His condition was such as to attract the attention of persons who saw him from a distance. Some time afterwards his lifeless body was found by the side of the track. The skull was crushed, but there were no wounds on the body. There were no eyewitnesses to the occurrence, but apparently the unfortunate man had lain down on the side of the track and gone to sleep, when he was struck in the head by the pilot, or some other part of a passing engine, and killed. The place where the body was found was not at or near a public crossing. The track at that point was straight for a distance of from a quarter to a half mile in the direction from which the train approached that is supposed to have struck the deceased. The engineer and fireman of that train testified that they knew nothing whatever of the occurrence until that night or the following morning, when they were informed of it by others. When they passed the place where the deceased was afterwards found, each was attending to his customary duties on the engine. It was the duty of the engineer to keep a lookout ahead all the time, and it was also the fireman's duty to look ahead when he was not firing the engine. The fireman could not say whether he was firing the engine at this point or not; but...