Moore v. Southern Ry. Co.

• Decision Date: 26 September 1911
• Parties: MOORE v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

72 S.E. 403

136 Ga. 872

MOORE v. SOUTHERN RY. CO.

Supreme Court of Georgia

September 26, 1911

Syllabus by the Court.

At the conclusion of the testimony introduced by the plaintiff there was no evidence before the court and jury that would have authorized a recovery against the defendant, and the court did not err in granting a nonsuit.

Error from Superior Court, Spalding County; E. J. Reagan, Judge.

Action by Mrs. Lou Moore against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

R. R Arnold and T. E. Patterson, for plaintiff in error.

C. E Battle and Howell Hollis, for defendant in error.

BECK J.

The plaintiff, Mrs. Lou Moore, brought suit against the Southern Railway Company to recover for the killing of her son, Travis Moore, near the Griffin Mills, in the city limits of Griffin about 9 o'clock at night in the month of August, 1908. It was alleged, that the decedent was upon the track of the defendant, and was run upon and over by an engine and train of the defendant running at the rate of 40 miles an hour; that this was a negligent and reckless rate of speed under the circumstances; that the presence of the decedent upon the track was discovered by the engineer for a distance of 400 yards away, but, notwithstanding his knowledge of this fact, the engineer failed to exercise ordinary care to avoid striking the decedent; that by the exercise of such care he could have stopped the train before reaching him; and that the employés of the defendant failed to give proper signals of approach by bell and whistle. The place at which Moore was killed was alleged to have been in a "district thickly populated; there is a path and footway across the track at this point, a public road runs parallel to the defendant railway company's track on both sides, and there is a path from one side to the other, used daily by hundreds of people in going to and from the church and the various settlements on both sides of the railroad." Upon the trial of the case, at the conclusion of the evidence offered by the plaintiff, the court granted a nonsuit, and the plaintiff excepted.

One of the witnesses, the father of the decedent, testified: "I went to look at the place where he was killed. It was about in the center of the middle path. There were three paths. He was sitting down about on one of the three paths coming across there, on the end of two cross-ties. Seemed to be there, where they knocked him from, right in front of the church door. *** I saw the headlight of the engine. I did not hear it coming. I could see down the track from Experiment towards Griffin to the point where he was said to have been killed. My son was prevented from seeing the train coming along by bushes and weeds as high as your head that had grown up by the side of the railroad track. They might have prevented the engineer from seeing him. My son was sitting in front of the church door. *** His foot signs were where he was sitting on the cross-ties. That is where they knocked him off in the bushes. *** I don't know how long he had been sitting there. *** There were three of the paths that crossed there. They do not make a connection, and come together and go down the bank to the railroad. They are 15 to 20 feet apart, where you go down. The paths were about 10 feet apart at the place he was. He was between the middle path and the left-hand path; about 10 feet from the left-hand path. He had been sitting near the center path, a little to the left of it. He must have been sitting on the cross-ties with his back to the track, leaning over. The church was about 30 or 40 feet from the track. At the time of the accident, that clump of bushes was between there and the church. That is where he was hit, near that clump of bushes in front of the church. They are between the church and the railroad track. He was sitting on the cross-ties, sitting with his face towards the church."

The only other witness who testified was John Noland, who testified, in part, as follows: "I don't know whether he [the engineer] seen him or not. He might have seen him, if he had looked for him. The fellow that was killed could have seen the engine, if he had looked at all. I believe he could. There was a headlight on the engine. If he was on the track, the light of the headlight was on him. I stated that I heard a man on the engine say he saw something on the cross-ties stooping over. He thought it was a dog. He was sitting on the cross-ties. He said he saw the object when he was up at the Griffin Mills. That was between three and four hundred yards away. I saw the party who made the statement on the engine. He came down the track on the east side. I was then on that side. The bushes were as close to the track as to this wall here. The embankment is low, and bushes hung over. Not close enough to be touched by the train."

The inference from this testimony is that the decedent, at the time of his death, was not only a trespasser upon the track of the defendant railway company, but was guilty of gross neglect and of an entire failure to exercise any degree of care or caution for his own safety. Under these circumstances, we do not think, taking the most favorable view of the testimony for the plaintiff, that she was entitled to a recovery. Under no case decided by this court, to which our attention has been called, has it been held that a recovery could be had for the death of a trespasser upon the track of a railway company, who, at the time of the homicide, was guilty of carelessness and...