Williams v. Southern Ry. Co.

• Decision Date: 12 November 1906
• Citation: 55 S.E. 948,126 Ga. 710
• Parties: WILLIAMS v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

55 S.E. 948

126 Ga. 710

WILLIAMS v. SOUTHERN RY. CO.

Supreme Court of Georgia

November 12, 1906

Syllabus by the Court.

The evidence was of such a character as to require the submission to the jury of the issues raised therein, and it was error to grant a nonsuit.

Error from Superior Court, Habersham County; J. J. Keinsey, Judge.

Action by Rachel Williams against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Arnold & Arnold, Harvey Hill, and J. C. Edwards, for plaintiff in error.

John J Strickland, for defendant in error.

ATKINSON J.

When it was shown by the evidence that the deceased came to his death by the running of the locomotive, cars, and other machinery by the agents and servants of the defendant engaged in the operation thereof, the statutory presumption specified in the Civil Code of 1895, § 2321, arose. Under the provisions of the statute just referred to, the liability of the railroad company, when once established by presumption, will remain "unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence." Under no view of the evidence could it be said that the defendant has shown its agents to have been in the exercise of all ordinary and reasonable care and diligence at the time of the commission of the homicide. They were running through a town and over a public crossing where they had reason to anticipate the presence of persons. The deceased was where he had a right to be, in the street. The ground was mutual. The probability is that the whistle was blown only at the mile limit because that was the usual place for the engine to give the station signal, and it was running at the rate of 40 or 45 miles an hour, and the night operator, who was the agent for the defendant testified that it was about a minute and a half from the time it blew until the train passed the depot. Without blowing another time, the servants of the defendant in charge of this train ran at this terrific rate of speed around a curve within about 300 yards from the depot and over the crossing where the deceased was struck, and not even the agent of the defendant seems to have heard the bell ring. Running at that high rate of speed, it would have been hardly possible for persons crossing the railroad track on the public crossing, in vehicles or otherwise, to escape injury from the train. The conditions were such that those operating the train did not even know that they had struck the deceased, until after the news had been telegraphed ahead by the night operator, although they were bound to anticipate his presence there. It is impossible to see how this could have happened if the servants of the defendant had been in the exercise of ordinary and reasonable care. The judgment of nonsuit could not have been awarded upon the theory that there was no negligence upon the part of the defendant.

It is insisted, however, that the plaintiff's husband, by the exercise of ordinary care and diligence upon his own part, could have avoided the consequences of the defendant's negligence, and for that reason the plaintiff could not recover. The burden of proof rests upon the defendant to establish this defense. Civ. Code 1895, § 5160; Falkner v. Behr, 75 Ga. 671; City Council of Augusta v. Hudson, 88 Ga. 599, 15 S.E. 678 (3); Georgia Midland R. Co. v. Evans, 87 Ga. 675, 13 S.E. 580. This, of course, may be accomplished by the plaintiff's evidence, if it so authorizes. But the rule applies only after the defendant's negligence begins, and its existence becomes apparent. Brunswick R. Co. v. Gibson, 97 Ga. 497, 25 S.E. 484; Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708, 39 S.E. 306, 54 L.R.A. 802; Atlanta K. & N. Ry. Co. v. Gardner, 122 Ga. 82, 49 S.E. 818 (4).

If after the negligence of the defendant commenced, the deceased became aware thereof, or, by the exercise of ordinary care, should have become aware thereof, and then and thereafter failed to exercise ordinary and reasonable care and diligence for his own safety, there could be no recovery. The deceased's want of ordinary care is a question for the jury, concerning which they are exclusive judges, just as ...