Richmond & D.R. Co. v. Johnston

• Decision Date: 02 May 1892
• Citation: 15 S.E. 908,89 Ga. 560
• Parties: RICHMOND & D. R. CO. v. JOHNSTON.
• Court: Georgia Supreme Court

15 S.E. 908

89 Ga. 560

RICHMOND & D. R. CO. v. JOHNSTON.

Supreme Court of Georgia

May 2, 1892

Syllabus by the Court.

The evidence warranted a finding for the plaintiff; and, as the statute fixes the measure of damages at the full value of the life, the verdict was not excessive in amount.

Error from city court of Atlanta; HOWARD VAN EPPS, Judge.

Action by Susan E. Johnston against the Richmond & Danville Railroad Company for the wrongful death of plaintiff's son. Plaintiff obtained a verdict for $5,000. Defendant brings error to an order overruling its motion for a new trial. Affirmed.

Where decedent, while crossing a railroad track, was killed by a train running at the rate of from 20 to 30 miles an hour, the question whether he was in the exercise of ordinary care was for the jury.

The following is the official report:

The grounds of the motion were: The verdict was excessive, and showed undue bias and prejudice against defendant; was against the weight of the evidence, and without evidence to support it; and was contrary to the principles of justice and equity.

The evidence for plaintiff, in substance, was to this effect Rufus Johnston, the minor son of plaintiff, was killed by the train of the defendant at a public crossing, known as "Bellwood Crossing," which crossing is about 50 yards beyond the city limits of Atlanta. The crossing is much used. The killing occurred at about 10 o'clock in the morning. Rufus Johnston approached the crossing, driving mules attached to a wagon. He waited for a train of the Western & Atlantic Railroad, which was coming towards the city, to pass. When it passed, he started on across. As he drove across the Western & Atlantic track he looked towards a switch engine below the crossing, and the train of defendant coming rapidly around a curve from the direction of the city struck the wagon, and killed him. He was then upon the track of the Georgia Pacific Railway. Defendant's train was running quite rapidly,--from 18 to 30 miles an hour,--and was running backwards, the engine and tender being at the end of the train nearest to Johnston. No signal was given except the blowing of the engine whistle at about 400 yards from the crossing. A curve in the track prevented defendant's train being seen from the crossing at the point where this signal was given. The train did not check and keep checking speed before reaching the crossing, but increased the speed. It was possible to see from the crossing for 150 or 200 yards in the direction defendant's train was approaching. If when Johnston started across, he had looked in that direction, he could probably have seen the train in time to have stopped. He was driving a wagon with a sand bed on it, which makes a good deal of noise; and the noise of his wagon, and his attention being drawn to the other engine mentioned, probably prevented his hearing the approach of the train which killed him, until just before he was struck. Johnston was driving slowly as he approached the first track, to where he stopped to permit the Western & Atlantic train to pass. He was 18 years old, was healthy, and was a sober, good boy. Plaintiff has a husband and another son. This other son is an adult, and has to work for himself, and boards at plaintiff's house. Her husband assists in her support, is 55 years old, and at the time of the trial had been sick for over a month. Plaintiff is about 53, and lives on a small farm, which she owns. Her oldest son does not contribute to her support. Her son who was killed did. She depended on his labor. If he made $1.50, he gave it to her; and when he was not driving the wagon he was at home working. He was her support. He had no regular employment, but worked every day. At the time he was killed he made $3 a day driving the sand wagon and mules, which money was plaintiff's. She did not know exactly how much were his average earnings per day, but reckoned about $1.25 or $1.50. She is not able to work, but does all she can.

For the defendant, from the evidence of the conductor and engineer of the train in question, the following appears: Four hundred yards from the crossing the crossing signal was given by blowing the whistle. The conductor, who was on the engine blew the whistle. The engineer shut off steam, and the train moved along at the rate of six or eight miles an hour until a point was reached from which the crossing could be seen, which was between 100 and 200 yards from the crossing. The fireman was looking out, and there is no trouble to see the track over the front of the tender when one is standing up. When the engine came in sight of the crossing there was no one there, and the speed was increased to a rate of 12 to 18 miles an hour. Rufus Johnston was not seen by the engineer or conductor until the engine approached to about the city limits board, from 60 to 100 feet from the crossing. A high fence kept them from seeing him before. There is room enough between the Georgia Pacific track and the corner of the fence for a wagon to have stopped. When they first saw him he drove right out from behind the fence, and the mules were trotting,--came out from behind the fence in a trot. He was not looking towards this train. The crossing is a public one, and largely used. The high fence had been there for some months, and the conductor knew it was there. The conductor testified that just at the time Johnston came out from behind the fence he, the conductor, was looking. The fireman hallooed at the same time, "Look out for the mules!" "He (Johnston) was a little closer to the crossing than we were. We had no time to stop. We did not see him in time to stop. By the time we saw him the engine hit him. We could have stopped easily if we had seen him when we came in sight. Did not check the train at all in approaching the crossing, after we saw it was clear. It was about the city limits before we saw him. I was talking to the engineer at the time. He, the engineer, was facing the engine, backing; was standing with his hand on the throttle; and I was standing looking in his direction, talking at the time not more than usual. The fireman hallooed, 'Look out for the mules!' and we looked around, and about the time we saw him we struck him. The engine had an air brake. If every effort were made to stop, the train could not have been stopped at that point under one hundred yards. The train was beyond the crossing between one hundred and one hundred and fifty yards when stopped." It was not improper for witness to be on the engine. The engineer testified: "We got in about one hundred and fifty or one hundred and seventy-five or one hundred feet of the crossing, and I saw a team come driving from behind the high fence, and dash right up on the track in front of me, and did not give me any show to check up before I hit him. The team was going nearly as fast as the train. The team was in a fast trot. He could have stopped very easily if his mules were walking. That high fence prevented his seeing us, but after he drove out from behind the fence nothing at all to prevent. He was looking right straight ahead of his team." The train had been ordered to go to Howell's, and had about 15 minutes to run two miles in, witness thought. It has been so long ago he has forgotten what time they had. "Were running about twelve miles an hour when they struck the crossing, and at that rate of speed could have stopped in a little over two hundred and twenty-five or three hundred feet. At twenty miles an hour could have stopped in between three hundred and four hundred feet; and...