Louisville & N.R. Co. v. Hames
| Decision Date | 13 August 1910 |
| Citation | 68 S.E. 805,135 Ga. 67 |
| Parties | LOUISVILLE & N. R. CO. et al. v. HAMES. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A road may become a public road by prescription. Evidence that the public had used the road continuously for 20 years, and that the proper county authorities during that time have recognized it as a public road by having the same worked will be sufficient to authorize an inference that such road is a public road.
(a) In determining whether a road used by the public for the period of 20 years has been accepted by the authorities of the county, evidence that a public road overseer had caused it to be worked, and that, after complaint of a citizen to the ordinary of the county to take charge of the road, it had been worked by the road hands, is relevant and admissible.
Civ Code 1895, § 2321, which provides that a railroad company shall be liable for any damage done to persons by the running of the cars, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company, has no application to a servant of the company, who is sued with the company as a joint tort-feasor. Where the engineer is jointly sued with the railroad company, it is error to charge that upon proof that the plaintiff has sustained his allegations that he was injured by the running of the cars of the railroad company, then the law would raise a presumption against the company and the defendant engineer that they were negligent, and that the burden would be upon them to show either that they were not negligent, or that the plaintiff by the exercise of ordinary care could have avoided the consequences to himself of their negligence.
A traveler upon a public highway, in approaching a railroad crossing, is bound to exercise ordinary care and diligence for his own safety; yet, though he may not observe that amount of care and diligence which would be exercised under like circumstances by an ordinarily prudent person, he is not necessarily precluded from recovering for injuries to his person, received on the crossing, if, after it is apparent that the engineer of the company is disobeying the provisions of section 2222 of the Civil Code of 1895, he then exercises ordinary care and diligence in endeavoring to escape the consequences of the company's negligence.
Civ Code 1895, § 2224, denounces the failure of the engineer to comply with the blow-post law to be a misdemeanor. The violation of a penal statute proximately causing an injury is negligence per se, and the court may so instruct the jury.
It not being alleged that the community where the injury happened was populous, and there being no allegation of negligence as to the running of the train through a thickly populated community, testimony that the engineer had knowledge that the place where the plaintiff was injured was in a populous community is irrelevant.
The other charges complained of were not open to the criticisms made against them.
Error from Superior Court, Cobb County; N. A. Morris, Judge.
Action by J. S. Hames against the Louisville & Nashville Railroad Company and another. Judgment for plaintiff, and defendants bring error. Reversed.
Tye Peeples & Jordan, J. G. Roberts, and D. W. Blair, for plaintiffs in error.
Clay & Morris, for defendant in error.
1. J S. Hames obtained a verdict against the Louisville & Nashville Railroad Company and J. L. Latimer, its engineer, because of certain injuries sustained by the plaintiff in the running of the cars of the defendant company. It was alleged that the plaintiff, while walking upon a public road, in the exercise of due care, was struck by a passenger train of the company as he was about to cross the railroad track, and suffered certain injuries. The collision is alleged to have resulted from the failure of the engineer when he reached a distance of 400 yards, to blow the whistle of the locomotive and check the speed of the train as it approached the public crossing, and because the cars were running at the high and dangerous speed of 40 miles per hour in approaching and passing over the crossing. The scene of the collision was a place where the railroad traversed a road which connected the Bell's Ferry and the Cassville public roads; and it was contended by the plaintiff that this crossroad was a...
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