Southern Ry. Co. v. Combs

• Decision Date: 19 February 1906
• Citation: 53 S.E. 508,124 Ga. 1004
• Parties: SOUTHERN RY. CO. v. COMBS.
• Court: Georgia Supreme Court

53 S.E. 508

124 Ga. 1004

SOUTHERN RY. CO. v. COMBS.

Supreme Court of Georgia

February 19, 1906

Syllabus by the Court.

Every thoroughfare which is used by the public, and is common to all the public, and which the public has a right to use, is a highway.

A highway may have its origin in a legislative act, or in the order of a court of competent jurisdiction, or may come into existence by dedication or by prescription.

A public road, within the meaning of the blow-post law, is a highway originating in one or the other of the methods above referred to.

The words "established pursuant to law," appearing in Civ. Code 1895, § 2220, following the words "the public roads or private ways," limit and qualify only the words, "private ways," and have no reference to the words "public roads."

There was no error in the rulings on the admission of evidence, the charges complained of were not erroneous for any reason assigned, the evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.

Error from Superior Court, Henry County; E. J. Reagan, Judge.

Action by W. J. Combs against the Southern Railway Company. There was judgment for plaintiff, and defendant brings error. Affirmed.

C. E Battle, for plaintiff in error.

J. F Wall and E. M. Smith, for defendant in error.

COBB P.J. (after stating the foregoing facts).

1-4. The term "highway," in its popular sense, is a road or way open to the use of the public; a main road or thoroughfare. Webster's Int. Dict. A way open to all the people is a highway. Though every public thoroughfare is a highway, it is not essential that every highway should be a thoroughfare. Elliott on Roads and Streets, (2d Ed.) § 1 et seq. A road which leads only to the residence of a single individual may be a highway. Every thoroughfare which is used by the public, and, in the language of the English books, is common to all the King's subjects, is a highway. 15 Am. & Eng. Enc. Law (2d Ed.) 350. Highways are created by legislative authority, by dedication, or by prescription. The construction of the term "highway," when used in a statute, depends upon the legislative intent, and no fixed rule in regard to its meaning can be given. The term "road" is frequently used as synonymous with "highway," but it does not appear to have any fixed legal meaning. 15 Am. & Eng. Enc. Law (2d Ed.) 350 et seq. In order to properly determine what is a public road, within the meaning of the blow-post law as is contained in Civ. Code 1895, § 2220 et seq., it becomes necessary to take a review of the legislation finally culminating in these sections.

In 1838 the General Assembly passed an act with the following title "To amend the road laws of this state so far as to cause to be kept in good repair all places where any railroad which now is or hereafter may be chartered crosses or may cross any public highway in this state." The act made it the duty of all railroad companies "to put and keep in good travelling order and repair the public road at such point or points where the same may be crossed by their respective railroads"; and then proceeded to provide for removing obstructions from such crossings, and requiring that railroad companies put the crossings in good condition for travel. Acts 1838, p. 216; Cobb's Dig. p. 955,§ 58. No further duty in reference to the crossings than that of maintenance in good order was imposed by this statute. The duty of a railroad company to erect blow-posts and give signals of the approach of trains at crossings had its origin in the act of January 22, 1852 (Acts 1852, p. 108). On December 14, 1851, there was at a road crossing in Monroe county a collision between the train of the Macon & Western Railroad Company and a carriage, containing a lady and her four children, driven by a negro slave, which resulted in the death of two of the children and the driver, and serious injuries to some of the other occupants. The catastrophe was of such a distressing nature that the General Assembly, then in session, promptly passed the act above referred to. This accident was the foundation of the cases of M. &. W. R. Co. v. Davis, 18 Ga. 679; M. & W. R. Co. v. Winn, 19 Ga. 440; and M. & W. R. Co. v. Winn, 26 Ga. 250. The title of the act of 1852 was "An act to prescribe certain rules and regulations to be observed by railroad companies in running engines upon their respective tracks, and fixing a penalty for violating the same." The act provided that the several railroad companies in this state should be required, by the 1st of February following, to prepare and put up signboards, parallel with their tracks, "over each and every public road where the same crosses the railroad track," with the following words painted thereon in large letters: "Look Out for the Engine When the Whistle Blows." It also provided that there should be fixed on the line of the track, at a distance of 200 yards from the center of each public road, on each side of the road, a post, and the engineer should be required, when he arrived at either of the posts, to blow the whistle of the engine until the engine arrived at the public road, and, moreover check the speed of the engine so that the same might be stopped should any person or thing be crossing the track on the public road. A failure to erect these signboards was declared to be a misdemeanor, for which the president and directors of the company were indictable. The failure of the engineer to comply with the provisions of the act was also declared to be a misdemeanor.

By an act approved December 17, 1859 (Acts 1859, p. 64), the act of 1852 was amended so as to repeal that provision in reference to the signboards, and to require the blow-posts to be placed at a distance of 400 yards from "the center of each public road on each side of said road," making the president and directors indictable only for failure to erect the posts. That portion of the act of 1852 which required the engineer to blow and check as he approached the crossing, and making him indictable for failure to comply with these provisions of the act, were unaffected by the act of 1859. Such was the condition of the law in regard to the duty of railroad companies in reference to the maintenance of public road crossings, and the manner of operating their trains over the same, at the time that the Code of 1861 went into effect. The duty in regard to maintenance of public road crossings had its origin in the act of 1838, which made no reference to the manner in which trains should be operated over the crossings, and this duty applied to all public roads. As indicated by the title of the act, the term "public roads" was used in the sense of "highways." The acts of 1852 and 1859 make no reference whatever to the act of 1838, but in each of these acts the provisions are such as to be applicable to "each public road" in this state. There is no reference whatever in any of these acts to private ways, nor anything to indicate a classification of public roads.

The compilers of the Code of 1861 placed in one article, under the title ""Railroad and Other Crossings," the different provisions of law in reference to railroad crossings. A large part of this title is traceable directly to the three acts above referred to, though there were some changes made by the compilers. The act of 1838 finds expression in section 678 of the Code of 1861, which has been brought forward into the Code of 1895, as section 2220, in the exact language in which it appeared in the Code of 1861, which is as follows: "All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws." In this section, for the first time, appears the expression "or private ways established pursuant to law," which follows the words "public roads." As this is the first reference to private ways, and as the words "public roads," without any qualifying expression, can be traced directly to the act of 1838, it is to be presumed that they were used in the Code exactly in the same sense in which they were used in the act of 1838, and that the qualifying expression applies only to the words "private ways."

The duty of maintenance of public road crossings, therefore under the Code, is the same duty that arose under the act of 1838, and applies to all public roads of any kind and nature whatsoever. And even if the words "established pursuant to law" would have the effect to classify public roads into roads established by the General Assembly and by the ordinary and by county commissioners into one class, and public roads established in other ways into another class, the words "public roads," used in the Code evidently in the broad and comprehensive sense of "highways," embraces every public road of every class. The provisions in reference to the blow-post and the duty of the engineer on reaching such posts, taken from the acts of 1852 and 1859, are found in section 2222 of the Code of 1895, in identically the same language as they appear in section 680 of the Code of 1861. The section is connected with the preceding sections by the use of the words "said roads." That is, the effect of the codification was to provide that the provisions of the acts of 1852 and 1859 should be applicable to every road to which the act of 1838 applied. And all three of the acts in the original applied to each and every public road in the state. Though there were some other changes made by the codifiers in the provisions of what we now call the "blow-post law," they are not material to the present discussion. For instance, under the Code, the...