Parish v. Western & A.R. Co.

• Decision Date: 21 May 1897
• Citation: 29 S.E. 715,102 Ga. 285
• Parties: PARISH v. WESTERN & A. R. CO.
• Court: Georgia Supreme Court

29 S.E. 715

102 Ga. 285

PARISH v. WESTERN & A. R. CO.

Supreme Court of Georgia

May 21, 1897

Syllabus by the Court.

Even if the evidence in the case was sufficient to find that the homicide of plaintiff's daughter was caused by being stricken by some part of a locomotive or car attached to a moving train, it also shows the further facts that the person injured was on the track, and in some other than an erect position, either sitting or lying thereon, and that such injury occurred at night, between 12 o'clock and daylight. These facts being true, it is a conclusion of law that the injured person could at least have avoided the injury by the exercise of ordinary care, and there could be no recovery. The nonsuit was therefore right, and the judgment of the court below is affirmed.

There was evidence from which the jury could have inferred that the person for whose homicide this action was brought was killed by the running of the train of the defendant company, and upon that evidence the presumption of negligence arose against the company. Consequently, the company might have been held liable, and, there being no evidence as to the circumstances attendant upon the commission of the homicide which necessarily rebuts that presumption or shows that the person injured did not exercise ordinary care, the granting of a nonsuit was erroneous. Per Lumpkin, P.J., and Atkinson J.

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

Action by Dovey Parish against the Western & Atlantic Railroad Company. From a judgment of nonsuit, plaintiff brings error. Affirmed.

B. Z Herndon, T. R. Jones, and W. E. Mann, for plaintiff in error.

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

SIMMONS C.J.

There was no evidence tending to show that the plaintiff's daughter was killed by the railroad, except the fact that she was found lying dead near the track, her body bearing certain marks of violence, described below. Her body was found at a point not near a public crossing. There was a hole in the left side of her head, behind the ear, where her skull was crushed to such an extent that an egg would lie in the cavity. At about 3 o'clock in the morning of the 12th of December the railroad train passed the point where she, about daylight of the same morning, was found. Taking into consideration the time of the year, the finding of her body must, therefore, have taken place at about 6 o'clock of the morning. One witness said that, when he first saw her, blood was running from the wound. The physician who examined her after her death testified that blood would cease running 10 or 15 minutes after the death of a person who died from such a wound; that in his opinion a person who had received such a wound might live 15 minutes or even a half an hour. There was no blood upon the track of the railroad, there was no indication that the deceased had been dragged by the engine or cars, and her clothing was not torn. She was lying at right angles to the track, her feet near the rail. On the left side of her head was the indentation referred to above, and on the right side were a few little gashes. Several witnesses testified as to how the accident might have happened, but it was seen by no one. One witness said that the deceased might have been struck by the steps of the locomotive; another, that she might have been struck by the elliptic springs that project from the trucks. These, however, are mere conjectures. To me it seems unreasonable to suppose that if a woman had been struck by the train at 3 o'clock, and her head crushed as the physician testified it was, she could have lived for nearly three hours. She must have lived that length of time after the accident, if she was killed by the train; for one of the witnesses testified that when he found her, at daylight, blood was running from the wound in her head, and, according to the testimony of the doctor, to the effect that in such cases blood ceases to flow in 10 or 15 minutes, she must have been alive less than 15 minutes before the first witness saw her.

Whether this view of the case is correct, or not, the majority of the court think immaterial, since, in their opinion, the plaintiff will in neither event be entitled to recover. If the deceased was killed by the train, the testimony shows that she could not have been on the track in a standing or walking position; for she would then have been badly mutilated. So, if she had been directly on the track in any position. The nature of the wounds was such that they could have been inflicted by only certain parts of the engine or cars, and these portions were so located as not to strike her head, had she been standing or walking either on or near the track. She must, therefore, have been on the ends of the cross-ties or near the track,--so near that the steps or elliptic springs could have struck her head,--and she must have been sitting or lying down. The watchman testifies that at midnight he passed with a lantern the spot where she was subsequently found, and that at the time he passed she was not there. If she was struck at all by the train, she must have sat or lain near the track after the watchman passed, and was doubtless asleep when the train passed. Standing, she could not have received the wound in her head, and no other wound on any portion of her body, if the wounds were made by a train. If this theory be correct, she was guilty of the grossest negligence in sitting near the track of a railroad and going to sleep in the night-time. The evidence shows that the train which, at 3 o'clock, passed the place where she was found, was moving at a speed of from 35 to 40 miles an hour. It would have been impossible for the engineer to have stopped the train in time to avoid striking her in the distance she could be seen by the headlight.

Section 2322 of the Civil Code declares: "No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence." Section 3830 is: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." For a person to sit or lie down upon or near the track of a railroad at night, and to go to sleep there, is gross negligence. He knows that trains are constantly passing. The railroad track is itself a warning of danger to every one who goes upon it; and whoever does so, especially in the night-time, takes his life in his own hands.

In the case of Sims v. Railroad Co., 28 Ga. 93, the report of the case shows that Sim's slave, in the daytime, was sitting on the end of a cross-tie, and was struck by the engine, and killed. He could have been seen by the engineer at a distance of several hundred yards. The whistle was not blown until the cars came within about 20 steps of him. He gave no heed to the notice (the presumption is he was asleep), and was struck and killed, as above stated. He could have seen the train about 1,000 yards up the road. Sims sued the railroad company for the value of the slave, and on motion a nonsuit was granted. Benning, J., in delivering the opinion of the court, says: "Was the court below right in granting the nonsuit? We think so. The case, on the part of the suffering party, Sims, was a case of the grossest negligence. There is not a single thing to serve as an excuse for his negro's being on the railroad track of the company, and that track was a place of notorious danger. To go asleep in such a place could be nothing short of an act of the grossest negligence."

The case of Raden v. Railroad Co., 78 Ga. 47, was one where "two boys, seventeen years of age, started from the house of their employer at night to go to the homes of their mothers for the night. Fifteen or twenty minutes after they left, the service train on the railroad went by. They had had plenty of time to have crossed the railroad and reached home. They were struck by the train at a public crossing. One of them was killed, and the other seriously injured. The witness by whom the plaintiffs sought to establish their right to recover testified that the boy who died had told him that they had stopped at the crossing, and the witness was satisfied that they were asleep. *** Held that a nonsuit was properly granted. To go to sleep on a railroad crossing was such negligence and recklessness as would prevent a recovery, even though the railroad company...