95 Ga. 430 | Ga. | 1895
Bobertson sued the railroad company for damages which he alleged had been sustained by him from the running of its train of cars against his mules and wagon while they were stalled upon the track at a crossing kept up by the defendant, because a cross-tie placed in the crossing by the defendant was rotten and broken, etc. There was a verdict for the plaintiff for $75, and the defendant’s motion for a new trial being overruled, it excepted. ■—
It was contended on the part of the railroad company, that the crossing at which the injury occurred not being a public road or a private way established pursuant to law, the company was under no duty to keep it in repair, the only statutory requirement as to the keeping in repair of crossings by railroad companies being that contained in section 706 of the code, which provides that all railroad companies shall keep in good order, at their expense, the public roads or ways established by law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws. It appears from the evidence, that the bridge or crossing. at which the injury occurred was built and kept up by the railroad company, and according to the testimony of the defendant’s “ supervisor,” who was the officer charged with the duty of looking after repairs of the track and crossings upon its line of road, “the crossing was put there to accommodate the settlement.” In view of these facts, it does not matter whether the crossing was one which the defendant was required by statute to keep in repair or not. ‘Where a railroad company builds a crossing over its road and undertakes to keep it in repair for the accommodation of the public, this is equivalent to an invitation to the public to use the same; and if a person using the crossing sustains
The present case is distinguishable from that of Cox v. Railroad Co., 68 Ga. 446. That case was controlled by the statute of limitations, the court holding that the action was barred by the statute; and upon its merits it differs essentially from this case. Although the declaration in that case alleged that the crossing was in a dilapidated condition, and that the injury resulted from such condition, the proof failed to show dilapidation, and the only defect shown was that the bridge was narrower than the road at the crossing, which fact was well known to the plaintiff, for the railroad at that point passed through his own farm, and he had been using the bridge daily for mouths, sometimes as much as twenty times a day. The court held that the railroad ■company was not required by the statute to build and maintain the bridge, and was not liable for damages because it had constructed a bridge narrower than the law required.