7 Ga. App. 381 | Ga. Ct. App. | 1910
Anna Mullins sued the Central of Georgia Railway .Company for damages on account of the homicide of her husband-. The jury returned a verdict in her favor for $1,312. The case is before this court on exceptions to the judgment overruling the defendant’s motion for a new trial. The evidence in behalf of the plaintiff makes in substance the following ease: On June 24, 1907, while a freight-train of the defendant was standing on a sidetrack in Stinson, an unincorporated village, for the purpose of permitting a passenger-train to pass, the engineer left the engine and crossed the tracks to a store, and, while at the store, he requested the plaintiff’s husband to carry a message for him to his fireman, whom he had left on the engine. In obedience to this request, the plaintiff’s husband crossed the tracks. The store was on the east side of the main track, and the freight-train was on the side or passing track, west of and parallel to the main track. After delivering the message, he started to return to the store, and, in order for him to do so, it was necessary for him to cross the main track. As he was attempting to cross this track, his attention was called to a rapidly-approaching passenger-train, and he attempted either to cross or to run down the track in front of it, and was struck by the train and killed. It is not clear, from the evidence, whether he attempted to cross in front of the train or to run down the track. A public-road crossing was about fifty yards north of the point of the killing. No signals were given by the engineer of the passenger-train in approaching the crossing, and no effort was made to check the train. It was running at about thirty miles per hour. The engineer on the passenger-train either saw or, in the exercise of ordinary care, could have seen the deceased approaching the track, in time to have prevented the accident. The freight-
1. Erom the substantially uncontradicted facts several propositions are clearly deducible: (1) that the deceased, when killed, was acting solely as a volunteer; (3) that he was not using or attempting to use the pathway across the tracks for the purpose of crossing, at the time of the homicide, as the tracks at that place were then being actually used by the railway company, and the pathway was blocked by its freight-train; (3) that the deceased was guilty of contributory negligence in attempting to cross the track immediately in front of the rapidly-approaching train. That the deceased was a volunteer can not be questioned, under the facts and the repeated rulings of the Supreme Court of .this State. “One who, without any employment whatever, or at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is a mere volunteer.” Here the engineer of the freight-train without any authority from the master, requested the deceased to convey a a message for him to his fireman, and the deceased voluntarily did as he was’directed. The only duty, therefore, which the railway company owed to the deceased at the time of the killing was the same duty which it owed to a trespasser, which was, not wilfully and wantonly to injure him after he was seen in a position of peril. Atlanta & West Point. R. Co. v. West, 121 Ga. 644 (49 S. E. 711, 67 L. R. A. 701, 104 Am. St. R. 179). As stated by
2. As to the second proposition the evidence is equally clear. Even assuming that the place where the deceased was killed was a pathway across the tracks of the railroad, much frequented by the public, with the permission or acquiescence of the railway company, there are two reasons why this fact would not be of any advantage to the plaintiff. -He was attempting to cross the tracks not in pursuance of any license, actual or constructive, from the railway company, but simply for the purpose of delivering a volunteer message to an employee of the railway company, who was on an engine attached to a freight-train which was standing on one of the tracks of the company, in its yard. While we can imagine a situation in which a volunteer might also be a licensee, yet such was not the fact in this case. Here the deceased was acting as a volunteer in using a part of the pathway crossing the tracks. Besides, the railway company was at the time itself actually using the tracks over which the alleged pathway crossed; and, as this court has held in Southern R. Co. v. Mouchet, 3 Ga. App. 266 (59 S. E. 927), and in Howard v. Augusta Southern R. Co., 6 Ga. App. 734 (65 S. E. 719), where the railroad company is using its tracks, any implied license or permission to the public to use them is temporarily withdrawn; and in this case the freight-train was blocking the pathway across the tracks and preventing their actual use by the public. The railway company was actually using the tracks within its yard, by virtue of its higher and exclusive right.
3. How as to the third proposition: Questions of contributory negligence are usually for solution by the jury; and where there is any evidence to support their finding, it will not be disturbed by a reviewing court. Yet in the present case we think the homicide was so clearly the result of the negligence of the deceased himself that the verdict in his'favor was unauthorized. He was in the yard of the defendant. It was in the daytime. If the noise of the freight-engine prevented him from hearing the approach of the passenger-train, it did not prevent him from
Por the reasons above stated, we are very clearly of the opinion that any verdict in behalf of the plaintiff was unauthorized by the evidence, and we therefore reverse the judgment overruling the motion for a new trial, on the merits of the case and without reference to any of the special assignments of error.
Judgment reversed.