Smith v. Savannah, F. & W. Ry. Co.
| Decision Date | 19 March 1890 |
| Citation | 11 S.E. 455,84 Ga. 698 |
| Parties | SMITH v. SAVANNAH, F. & W. RY. Co. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where, according to the weight of the evidence, there is grave doubt whether the plaintiff ought to recover anything the court below is warranted in granting a new trial, even a second new trial, if the damages found by the jury are extreme or excessive.
2. After waiting a reasonable time for cars blocking the highway to be removed, a pedestrian may turn aside to avoid the obstruction, and pass over the company's inclosed grounds. In so doing, he will be no trespasser.
3. While upon the company's grounds, under such circumstances, the diligence for his safety due from the company, as well as his own diligence in guarding against danger, is for determination by the jury. If the jury think his presence ought to have been foreseen or anticipated ignorance of it would make no difference.
4. Particular means or measures of diligence appropriate for use by each party should be left to the jury.
Error from superior court, Chatham county; FALLIGANT, Judge.
Denmark & Adams, for plaintiff in error.
Chisholm & Erwin, for defendants in error.
1. Although this was the second grant of a new trial, we would be disposed to uphold it if it rested alone upon the ground that the damages found by the jury are excessive. The case is an exceedingly close one for any recovery at all, and, this being so, there ought to be no extravagance or excess in the amount of damages which the company shall pay. Although the plaintiff was under 10 years of age, he seems to have been a bright boy, having enough development of mind to know that he was doing wrong not to wait for the cars to get out of his way at the crossing, and in passing over the tracks in the company's switching yard, where he was injured. Not only his capacity to know, but the actual state of his knowledge was shown by his testimony, in so far as the evidence given by a child can manifest the operations of his own mind.
2. As there is to be a new trial, we will briefly indicate our views of the law of the case upon the material questions which were discussed by counsel in the argument. The company had no right whatever to obstruct the highway for any length of time. But the occupation of its track by moving cars in the due course of business, would be no obstruction. Nor would the mere casual stopping of the train or the cars upon the crossing amount to an obstruction, if they were not suffered to remain a needless or unreasonable length of time. But for them to stand upon the track so as to hinder the use of the highway, needlessly or unreasonably, would be an obstruction. And after the plaintiff had waited a reasonable time for the crossing to be opened, and it...
To continue reading
Request your trial