Wilds v. Brunswick & W. B. Co

• Decision Date: 23 March 1889
• Citation: 82 Ga. 667,9 S.E. 595
• Court: Georgia Supreme Court
• Parties: Wilds v. Brunswick & W. B. Co.

9 S.E. 595

(82 Ga. 667)

Wilds

v.Brunswick & W. B. Co.

Supreme Court of Georgia.

March 23, 1889.

Accident to Persons on Track. One knowingly and needtessly walking at night upon a railroad track can, by the use of ordinary diligence, avoid being run over by a train, unless it appears that owing to some special fact or circumstance the use 'of such diligence would prove ineffectual. (Syllabus by the Court.)

Error from superior court, Ware county; Atkinson, Judge.

The facts set out in the official report, referred to in the opinion, are substantially as follows: Plaintiff's husband, in company with two others, had taken two drinks of whisky and a supper of beans and greens. After supper the three went together to where the jug of whisky had been deposited, and took another drink of whisky around, sat down on the crossing of the railroad and public road, talked a while, and parted. One of them went back to his house, another stepped aside, and plaintiff's husband walked on down the track. The train of defendant came along at a considerable rate of speed, which does not seem to have been checked before it struck the husband of plaintiff, and killed him. He was, when struck, more than 400 yards from the crossing from which he started, and about one-half to three-fourths of a mile from the next public crossing below. There was a private crossing about 40 yards from where he was struck, and near it was an old blow-post lying on the ground, with the initial W on it, and near where the blow-post was lying was an old stump, which had the appearance of being the stump of the blow-post. When plaintiff's husband separated from his companions, he took the jug of whisky with him.and but a short time elapsed before he was struck by the train. At the point where he was struck there were indications that he had leaned over towards the middle of the track, and vomited. It was a very dark night, and the track at the point was level, or nearly level, and straight for some distance. There was evidence that no signals were given in approaching the crossing, and the only evidence to the contrary on this point was that of the conductor of the train, who said that he could not remember positively whether the whistle was blown or not, but thought so, because it was the invariable rule to blow at all the public road crossings. One of the companions, who was standing near the track when the train passed, testified that he saw lights on the train, but was uncertain whether it was a...