112 Ga. 863 | Ga. | 1901
Tribble brought an action against the railway company to recover damages for killing his horse and injuring himself at a street-crossing in the City of Macon. It appears from the evidence, that the plaintiff and two others were in a buggy drawn by the horse of the plaintiff, which the latter was driving on Poplar street. On account of the situation of certain houses in close proximity to the railroad tracks where they intersected the street, neither the engineer nor the fireman on the locomotive could observe the approach of a person intending to cross the tracks until the locomotive was upon or very near the crossing. For the same reason one intending to cross could not observe the approach of the locomotive until within a short distance of the tracks. The injury was occasioned by reason of the fact that the horse which plaintiff was driving came in contact with the tender of the locomotive on the crossing. The horse was killed, and there was evidence that plaintiff was hurt. It was claimed by plaintiff that he exercised all proper and reasonable care and diligence in the driving and management of the horse, and in approaching the crossing; that the approach of the locomotive to the crossing was not signaled by the ringing of the bell, nor in any other manner; that the speed of the train over the crossing was from eighteen to twenty miles an hour; that ’the engineer did not check and keep cheeking the speed of his train until it came to the crossing; that as soon as he discovered its approach, and when he was very near it, he endeavored to stop his horse, which was a gentle one and ordinarily under easy control; that he was unable to do so, and his horse became unmanageable and struck the tender as the train was crossing; that all this happened without any fault or negligence on his part, and that it was due alone to the negligence of defendant company. An ordinance of the City of Macon made it unlawful for any engineer of any railroad company to run an engine or train through that part of the city at a greater rate of speed than five miles an hour. The defendant contended, and introduced evidence to show, that the bell on the locomotive was being rung as the train approached the cross
The damages which were shown in this case, occurred by reason of the operation of a locomotive and cars which were being run by defendant company.- The Civil Code, §2321, declares that the company shall be hable in such cases, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in this and all other like cases being against the company. Not only has this presumption not been rebutted in the present case, but the evidence conclusively shows that the speed of the train over the crossing at the time was greater than five miles an hour. Not only so, but it was also shown that the engineer in charge of the locomotive made no effort to so check the speed of the train as to stop it if any person was attempting to pass over at the time the locomotive reached the street, as was the engineer’s duty under section 2222 of the Civil Code. The failure to check and keep checking so as to stop in. time, should any person be crossing the track, as well as the failure to toll the bell (as required by section 2224 of the Civil Code) as a signal of approach to street-crossings, is a violation of law, and, being such, constitutes negligence per se. So also is a failure to comply with a valid municipal ordinance fixing a maximum rate of speed at which trains may be run, and declaring a greater rate unlawful, within the limits of a city. Central R. Co. v. Smith, 78 Ga. 694. While the evidence in relation to signalling the approach to the crossing by tolling the bell was conflicting, the fact seems to have been undisputed that the speed at which it was being run over the crossing was greater than that fixed as a limit by the ordinance introduced in evidence. If we eliminate this contested question of
It was ruled in the case of Comer v. Barfield, 102 Ga. 485, that although a traveler on a public highway (or street), in approaching a railroad crossing, may not observe that amount of care and diligence which would be exercised under like circumstances by an
Judgment affirmed.