Willis v. Cent. Of Ga. Ry. Co

• Decision Date: 09 October 1912
• Docket Number: (No. 4,277.)
• Citation: 75 S.E. 1132,11 Ga.App. 717
• Parties: WILLIS. v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Court of Appeals

75 S.E. 1132

(11 Ga.App. 717)

WILLIS.

v.CENTRAL OF GEORGIA RY. CO.

(No. 4, 277.)

Court of Appeals of Georgia.

Oct. 9, 1912.

On Motion for Rehearing, Oct 22, 1912.

(Syllabus by the Court.)

1. Former Decision Controlling.

This case is controlled by the decisions of the Supreme Court in Southwestern Railroad v. Hankerson, 61 Ga. 115, and Moore v. Southern Ry. Co., 136 Ga. 872, 72 S. E. 403, and is distinguishable from the case of Central of Georgia Ry. Co. v. Pelfry, 11 Ga. App. 119, 74 S. E. 854. The court did not err in directing a verdict in favor of the defendant.

(Additional Syllabus by Editorial Staff.)

2. Railroads (§ 376^*) — Operation — Injuries to Persons on or Near Track.

Where an intoxicated person fell or lay beside a railroad track, and the engineer of an approaching train supposed him to be a discarded tie, and, having kept a constant lookout, used every means in his power to stop the train on discovering that it was a person, the railroad company is not liable.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. § 376.*]

3. Railroads (§ 356^2-*) — Operation — Injuries to Persons on or Near Track.

That the public had for many years been accustomed to use the railroad track longitudinally as a walkway does not affect the company's liability for causing the death of a person beside the track, where the engineer kept a constant lookout, and used every means in his power to stop the train on discovering the presence of a person near the track.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1228-1234; Dec. Dig. § 356.*]

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Annie Willis against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Osborne & Lawrence and Shelby Myrick, all of Savannah, for plaintiff in error.

H. W. Johnson, of Savannah, for defendant in error.

POTTLE, J. The plaintiff in error sued the railway company for the homicide of her husband, and excepts to the direction of a verdict in the defendant's favor. The undisputed evidence shows that the deceased, while in a drunken condition, lay or fell down by the side of the defendant's track in the nighttime, and was struck by the pilot on the engine and killed. The case turns upon the testimony of the engineer, the only eyewitness to the killing, and whose testimony upon material points is undisputed. The point for determination may best be understood from the following quotation from the engineer's testimony: "This track out there is perfectly straight, a level track. After we passed Central Junction, I was looking ahead of my engine. At that time they were laying new rail between the C. & A. crossing and the junction, and there were lots of cross-ties and new iron lying to the side of the track; and I noticed something— as I thought a cross-tie—lying close to the track. I do not mean it was between the two rails. You understand, when they are putting in these new ties, they run them up, throw them to the side of the ties, wherever they find a bad tie there, and when they come to it they put it in. And I thought it was a tie that was lying there, and I got very close to it—I suppose 100 feet possibly —and I saw it raise up that way, and I slammed the brakes on before I shut the engine off, and I shut the steam off after the brakes were on. I did that for the simple fact that I did not have time after I discovered it was a man. That was the first time I discovered that it was a man. Had he not moved or raised his head, the engine would have gone by him without any danger; the train would have gone by him; he would not have been touched at all; but he raised up. He was not between the rails. He was not on the track at all. He appeared to me as though his head must have been either at the end of a cross-tie, or right between a cross-tie. The engine did not strike him; only the side of the pilot struck him. Just the edge of the pilot struck him in the head, and I slammed the brake on. * * * As to how close I was to him when he first raised his head up, I would say between 100 and 150 feet. I am satisfied it was not any more than that. I could not have stopped my train, within the distance that I saw him. without striking him, before my engine got to him; not when I discovered it was a man, and he raised up."

The case is, in our opinion, absolutely controlled by the decisions of the Supreme Court in Southwestern Railroad v. Hanker-son, 61 Ga. 115, and Moore v. Southern Ry. Co., 136 Ga. 872, 72 S. E. 403. In the Hankerson Case, supra, it appeared: That the engineer saw an object lying on the track, just beyond a crossing, which he took to be a hog that had been killed by a freight train just ahead of him. When he got within 100 or 125 yards of this object, he discovered that it was a man, lying between the rails, with his head on a stringer close up to the rail and his body and legs doubled up toward the next stringer and between them. That as soon as he saw this he put on his brakes, reversed his engine, and sounded the whistle. That from the time he discovered it was a man, and not a dead hog, he did everything he possibly could have done to prevent the injury to the person lying on the track. The Supreme Court held: "If one voluntarily becomes drunk, and consequently falls down, or lies down, in a state of insensibility on a railroad track, so that he is injured by a passing train, he cannot recover for injuries so received, even though there may have been contributory negligence on the part of employes of the road." In Moore's Case, supra, the man injured was sitting upon the end of a cross-tie in the nighttime. There was testimony that the engineer had stated, when at a distance of several hundred yards away, that he saw an object on the track, but thought it was a dog....