Snowball v. Seaboard Air Line Ry.

• Decision Date: 07 February 1908
• Citation: 60 S.E. 189,130 Ga. 83
• Parties: SNOWBALL v. SEABOARD AIR LINE RY.
• Court: Georgia Supreme Court

60 S.E. 189

130 Ga. 83

SNOWBALL v. SEABOARD AIR LINE RY.

Supreme Court of Georgia

February 7, 1908

Syllabus by the Court.

Where the evidence affords an inference that a person was killed on a public road crossing by the running of a railroad locomotive, and the attendant circumstances are not conclusive that the homicide was attributable to the negligence of the deceased person, or could not have been prevented by the exercise of reasonable care and diligence by the agents of the railroad company in charge of the locomotive, the court should submit the questions of negligence and diligence to the jury.

[Ed Note.-For cases in point, see Cent. Dig. vol. 41, Railroads §§ 1152-1192.]

The excluded evidence was irrelevant, and did not illustrate any issue made by the pleadings.

Error from Superior Court, Camden County; T. A. Parker, Judge.

Action by J. S. Snowball against the Seaboard Air Line Railway. Judgment for defendant, and plaintiff brings error. Reversed.

Harry F. Dunwoody and Osborne & Lawrence, for plaintiff in error.

Crovatt & Whitfield, for defendant in error.

EVANS P.J.

In her suit against the Seaboard Air Line Railway Mrs. Josephine Snowball claimed damages for the alleged wrongful death of her husband, caused by the negligent operation of the defendant's locomotive and train. It was alleged that the homicide occurred in the state of Florida; and the Florida statutes as to the right of the plaintiff to maintain the action, and the presumption of negligence on proof of the injury, were pleaded and proved on the trial. At the conclusion of the testimony the judge directed a verdict for the defendant, which he refused to set aside on motion for a new trial. The grounds of the motion were that the court erred in directing a verdict for the defendant, and in excluding certain evidence.

1. We have carefully examined the evidence, and have reached the conclusion that the court should have submitted the case to the jury. Without setting out the evidence, it suffices to say that two theories as to the cause of the death of the plaintiff's husband may be deduced-one that he was killed by the locomotive of the defendant; and the other that he was murdered and left on the track, and was dead when the locomotive passed over the body. If the jury should find that he was killed by the locomotive of the defendant, was the killing a negligent killing? The petition alleged that the railroad company was negligent (1) in failing to give warning of the approach of the train to a public crossing; (2) in running the train at a high rate of speed; (3) in failing to keep a proper lookout. The body was found on the railroad track near a public road crossing considerably mutilated; an arm and a leg being severed from the trunk. From the physical signs on the ground and track it was inferable that the body was struck by the locomotive at O'Neal public road crossing. The engineer, fireman, and conductor of the train which passed over his body were not aware of the fact until the train reached Fernandina, about eight miles distant, when the hat of the deceased was taken from under the engine. When the engineer was shown the hat he recalled that he had seen something white on the crossing, and said to the fireman, "Do you suppose somebody was on the crossing?" And the fireman replied, "I don't know." The engineer requested the crew of a train about to depart in the direction of the public road crossing at O'Neal "to look on that crossing to see if there was anything there." The crew of this train discovered the body of the plaintiff's husband at this point three or four hours after it had been run over by the passenger train. The engineer and fireman both testified that they maintained a lookout, and that the track just before reaching the crossing was straight. The engineer saw, when he was within 300 feet of the crossing, something white on the track, which he took for a piece of paper. In that distance he could have stopped his engine, if he had known anything was on the track. The engineer further testified that he gave the usual signal on approaching the station at O'Neal (which was a flag station); and, as he received no response from the conductor that he had any passengers to disembark, he blew the whistle...