Hambright v. Western & A.R. Co.

• Decision Date: 27 October 1900
• Citation: 37 S.E. 99,112 Ga. 36
• Parties: HAMBRIGHT v. WESTERN & A. R. CO.
• Court: Georgia Supreme Court

37 S.E. 99

112 Ga. 36

HAMBRIGHT v. WESTERN & A. R. CO.

Supreme Court of Georgia

October 27, 1900

Syllabus by the Court.

1. The affirmative and positive testimony of witnesses as to the actual facts of a particular occurrence cannot be overcome by testimony which is negative in character, or consists of mere opinions.

2. As to a trespasser walking upon the track of a railroad, the duty of observing ordinary care and diligence for his protection does not devolve upon the company's servants in charge of a train until his presence upon the track becomes known to them. Railway Co. v. Leach, 17 S.E. 619, 91 Ga. 419; Same v. Gravitt, 20 S.E. 550, 93 Ga. 369, 26 L.R.A. 553.

3. Applying the above rules to the evidence in the present case, it is manifest that the plaintiff was not entitled to a recovery, and the court, therefore, did not err in directing a verdict for the defendant.

Error from superior court, Catoosa county; A. W. Fite, Judge.

Action by M. A. Hambright against the Western & Atlantic Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Seaborn Wright, W. H. Odell, and Shumate & Maddox, for plaintiff in error.

Payne & Tye and R. J. & J. McCamy, for defendant in error.

PER CURIAM.

Judgment affirmed.