Shaw v. Ga. R. R

• Decision Date: 16 November 1906
• Citation: 127 Ga. 8,55 S.E. 960
• Parties: SHAW . v. GEORGIA R. R.
• Court: Georgia Supreme Court

55 S.E. 960

127 Ga. 8

SHAW .

v.GEORGIA R. R.

Supreme Court of Georgia.

Nov. 16, 1906.

1. Railroads—Injury to Person on Trace —Question fob Jury—Instructions.

Under the facts in this case, it should have been submitted to the jury to say whether that part of the railroad track which was the locus of the homicide was so frequently used by the public as a pathway, with the knowledge of the railroad company, as to require the servants of the defendant, engaged in the operation of trains thereon, to anticipate the presence of pedestrians. If the servants operating the train, in the exercise of ordinary care, should have anticipated the presence of pedestrians, then it was for the jury to say whether the servants were negligent in running the train over this particular place, under the attendant conditions, at such rate of speed as that it was impossible, after discovering the dangerous position of deceased, to stop before striking him. It was erroneous, therefore, for the court to charge: "I charge you it is not lack of ordinary care and diligence to fail to keep a lookout for persons on the track not on a public crossing." "I charge you, the duty to exercise all ordinary and reasonable care and diligence towards a person not on a public crossing arises when his presence becomes known to the employes in charge of the engine, and not before. A failure of such care and diligence after, that time, and from which injury occurs, unless it could have been avoided by the use of ordinary care on the part of the person killed or injured, will render the company liable."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1374.]

2. Same.

In view of the evidence, and under the charge as a whole, there are no other assignments of error which are so meritorious as to require a reversal of the judgment of the court below.

Fish, C. J., and Beck, J., dissenting.

(Syllabus by the Court.)

Error from Superior Court, Oglethorpe County; H. M. Holden, Judge.

Action by Winnie Shaw against the Georgia Railroad. Judgment for defendant, and plaintiff brings error. Reversed.

Paul Brown, W. M. Smith, and E. K. Lumpkin, for plaintiff in error.

Jos. B. & Bryan Cumming and H. McWhorter, Jr., for defendant in error.

ATKINSON, J. 1. In view of the evidence in this ease upon the question of frequent use of the railroad track, at the particular place of the homicide, by pedestrians as a pathway, known to the defendant company, we think, as a question of fact, it should have been submitted to the jury to say whether or not the use was shown to exist to such an extent as to require those operating the cars of the defendant to anticipate the presence of persons on the track. If the evidence was such as to require them to anticipate the presence of pedestrians on the track, then they were bound to use ordinary care to avoid injury to any one who might be on the track at that place. To do this would depend upon the particular conditions surrounding each case, but, among others, the condition of the machinery, the condition of the track, the capacity for stop- [ting within a given distance, and the capacity for discovering any one on the track within, that distance, are matters which should he taken Into consideration and observed by the engineer In approaching a part of the track where, from the publicity and frequency of its use by pedestrians, he has reason to apprehend the presence of one. In Atlanta Ry. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145, this court held that, relatively to a person who, without license from the company, Is walking upon a railroad track on a trestle, though such trestle be situated between a blowpost and a public crossing, the duty of the rail way company to observe "all ordinary and reasonable care and diligence towards such person arises when his presence becomes known to the engineer, and not before." This is a broad statement and an examination of the opinion will show that the court did not have in mind a place on the track so frequented by pedestrians as to afford reason for the engineer to anticipate their presence. The law would not be so lax with human life as to allow the operation of such dangerous machinery as a railroad train over such places with utter disregard. So afterwards, in the case of Georgia R. Co. v. Cromer, 106 Ga. 296, 31 S. E. 759, this court emphasized the duty of a railroad company to observe care with reference to one not on a public crossing, but at a place so frequented by the public as to give reason to anticipate their presence. In that case the court held: "Where a railroad crossing is in a populous locality and is much used by the public, but the same is not within the limits of an incorporated city or town, and Is not a part of a public road established pursuant to law, what rate of speed in approaching and running over such crossing would be negligence, and what signals ordinary care would require to be given, are matters to be determined by a jury according to the circumstances of each particular case." This case was referred to approvingly in Bullard v. Southern Ry. Co., 116 Ga. 644, 43 S. E. 39, and there the court said: "Where a number of persons habitually, with the knowledge and without the...