74 Ga. 426 | Ga. | 1885
This action was brought by the widow for the homicide of her husband by the railroad company. . The jury found for the plaintiff one thousand and twenty-five dollars. A motion was made for a new trial, on the ground that the verdict was without evidence, and contrary to evidence and to law, and the denial of this motion is the error' assigned.
The statute is full and positive in respect to the duty of the company in approaching these crossings. It requires it to establish blow-j>osts four hundred yards from the crossing. None, it appears,’ were established, at the time of this killing, at this most important crossing, within a mile or two of the city of Albany, and near another railroad track running alongside its track near the crossing. The statute requires its servants to blow, and continue to blow, until it reaches the crossing. This was not done. It requires the engineer to check the speed of the train, and keep checking, so as to have it under such control as to save life and property at the crossing, should either be in jeopardy on the public highway where it crosses the railway. This was not done. It is made by the statute criminal in the superintendent not to erect these blow-posts, and he is subjected to a "fine of not less than five hundred and not more than one thousand dollars, and in the engineer not°to blow thus. continuously and “ check simultaneously and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road,” under the penalty of fine or imprisonment. Code, §§708, 709, 710. Not only must all this be done, but the onus is upon the company to show fault in the injured person, if he was in fault, and his fault caused the disaster. Code, §711.
Not only, therefore, is it negligence, but negligence of the grossest and gravest character, not to comply with these statutory enactments to preserve human life on the public highway, when that highway crosses the railroad track; so grave that it is made criminal -not to comply with these enactments. In the Western and Atlantic
So that, so far from the presumption being rebutted by the exercise of all ordinary and reasonable care and diligence, the evidence fastens upon the company’s servants criminal negligence, amounting to a misdemeanor, punishable by fine upon the superintendent and fine or imprisonment on the engineer.
So that, even if there had been negligence by deceased or his driver, it would have been contributory, and not the
The conclusion reached is irresistible that the presiding judge did not abuse, but used with propriety and legally that discretion with which the law invests him, to deny the plaintiff in error a new trial.
Judgment affirmed.
The driver of tho wagon testified that about fifty or one hundred yards before reaching tho crossing, ho hoard a noise which ho thought was that of a running train; that he mentioned it to deceased, who was sitting in tho wagon, but thoughtitwas atrainon tho “Gulf Road,” which ran nearby; that deceased said ho hoard nothing, and that, as ho had a “ skittish ” mule, ho whipped his team, in order to get out of the way before what he supposed was the “ Gulf” train came by; that as his mules got on tho track, ho saw defendant's train approaching at a very short distance off; that tho mules turned to the loftand stopped, and tho injury occurred ; that there was a curve in the road near the crossing. The evidence for defendant went to show thatabout440 yards from the crossing the whistle was blown, and there was some slacking in the speed, and that the track was straight for 290 yards before reaching the crossing, and the head-light could be seen. As to the speed and the sounding of any whistle at all, there was some conflict.