70 Ga. 207 | Ga. | 1883
Lead Opinion
"What rights and powers have railroad companies over the tracks and road beds upon which their trains are run; and growing out of these rights, what duties do they owe to the public; and especially, what are their obligations to look to the safety and protection of persons using their tracks and the embankments upon which they rest, without their express license, for purposes other than those connected with the business they were created and authorized to transact ? These are the questions made by this record, and which both parties have urgently and earnestly invoked us to decide. We have held them over for a considerable
This, we apprehend, is the extent to which the other cases cited in the note, have gone. Certain it is that our own. courthas gone no further, for in the case of Baston vs. The Georgia R. R. Co., 60 Ga., 340, Jackson, J., delivering, the opinion of the court, says: “ Even a trespasser upon the track of a railroad, is entitled to be protected from gross negligence. Human life is sacred, and if a human form appear upon the road, walking, or sitting, or lying, down, some effort should be made to save life.” There-
The vieAV here presented, accords, with one important qualification, Avith the several provisions of our own Code upon the subject, especially sections 2912 and 3034, which embody the principles of the common laAV as declared by the decisions of this court, rendered previous to its adoption, and Avhich, so far as we can understand, have been followed in all subsequent decisions, including the case now under examination.
The first of the above sections will be found in Oh. ii., Tit. viii., of the Code. The subject of this title is, “Torts, or injuries to persons or property.” Chapter ii., under which this section is found, treats of “ Injuries to the person,” Avhile the remaining section is to be found under Ch. m.,, Art. hi., of the same title, which treats of “Injuries by Railroad Companies.” By section 2912, it is provided-: “ If the plaintiff, by ordinary care, could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other cases, (i. e., in cases other than those in which, by ordinary care., he could have avoided the consequences, etc.,) the defendant is not relieved, although the plaintiff may in some Avay have contributed to the injury sustained,” while section 3034, enacts that “ no person shall recover damage from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover,
Both branches of the rule of liability, as laid down in these sections of the Code, are traceable to, and derived from, decisions of this court, made prior to the adoption of that body of laws. As to the first branch of the rule, see, among other cases, M. & W. R. R. Co. vs. Davis, 18 Ga., 684; Central R. R. Co. vs. Davis, 19 Ib., 437; and as to the second, relating to contributory negligence, M. & W. R. R. Co. vs. Davis, 27 Ib., 113, and Yonge vs. Kinney, 28 Ib., 111. In M. & W. R. R. Co. vs. Johnson, 38 Ib., 431 and 432, this court recognized the view here presented as to the origin and source of the law as embodied in these sections of the Code. Subsequent decisions have not deviated from this line, as to liability for negligence. In Vickers vs. The Atlanta and West Point Railroad, 64 Ga., 308, Bleckley, J., said: “Whether it,” (the presumption which, under Code, §3033, imputes negligence to the company, upon the proof of the injury, and requires upon the part of its agents, the exercise of “ all ordinary and reasonable care and diligence ”), “ is overcome or not, if the plaintiff either caused the injury, by his own negligence, or could, by ordinary care, have avoided it, the verdict should still be for the company.” In a case where the injury was to personal property, the same learned judge (in Geo. R. R. & Bkg. Co. vs. Neely, 56 Ga., 543,) after citing Code, §§3033, 3034, used this language: “If the plaintiff consented to the injury, the matter is plain. If his own negligence was the sole and only cause of it, there is still no difficulty; for the establishment of that affirmative either negatives the fact of negligence on the part of the company’s agents, or renders the fact immaterial. Of course, however negligent these agents may have been, if the plaintiff’s negligence was the sole cause of the injury, their negligence was no part of the cause; hence, its immateriality.” And in a subsequent part of the same opinion, comparing these sections of the Code
In the present case, the question here made is res adjudicata, and is not open to review. 64 Ga., 475. Itis there stated that the company may relieve itself of damages by showing that its agents have exercised all ordinary and reasonable care and diligence to avoid the injury; or it may show that the damage was caused by plaintiff’s own negligence; or it may further show that the plaintiff, by ordinary care, could have avoided the injury to himself, although caused by the defendant’s negligence.
It must be further borne in mind that, by Code, §3033, the presumption of negligence is, in all cases (except suits brought by employés, Code, 3036), against the company, where it is shown that the damage complained
The plaintiff was not an infant of tender years at the time of this casualty. He was over fifteen years of age, fully capable of perceiving and appreciating the perils of the situation in which he placed himself; he was in a place where he had no business to be; the place was at all times dangerous, and under the circumstances of this transaction, peculiarly so. He was there for his own pleasure and convenience, not for any purpose of business with the company or its agents. He was not there either by the express license or encouragement of the defendant or or any of its agents. He saw the train more than a quarter of a mile off, approaching at a rapid speed; he leisurely pursued his walk, meeting it, and remained on the track until it came very near him, when he got off upon the narrow path that runs by the side of the superstructure on which the rails were placed. This path was not more than four or five feet wide, perhaps not so wide. Another person, Rosa Silverburg, occupied a portion of it, and the plaintiff was standing between her and the train; there was no obstacle to prevent these parties,
In such a position, the plaintiff should have been watchful and careful, and a want of this watchfulness and care makes him chargeable wit!} negligence. “ Slight circumstances may over-balance the presumption of freedom from negligence which we suppose to exist in favor of a plaintiff. Thus, his being found in a position of danger unexplained, or his free use of intoxicating liquors,” etc., “or any evidence tending to show careless habits, should turn the scale.” Shear. & Redf. Neg. §45. “ The rule of ■diligence, says Lumpkin, J., in Macon & W. R. R. Co. vs.
It would be a mere superfluous task to cite further authorities to a principle so fundamental in its nature, and one which the common sense and experience of mankind will readily recognize and appreciate.
Parties have an undoubted right to the use of public-crossings over railways, but before going on these crossings, they should exercise caution and look out for danger; and, as a general rule, a failure to observe these-precautions, where an injury is the result, may deprive them of the right to recover, even if the defendant has-been remiss in making use of the ordinary signals of warning and other expedients, as the ringing of bells, the blowing of whistles, the slacking of speed, etc., for avoiding casualties. Especially is this sc?, if the injury was not occasioned by this omission of duty, and would have occurred, if it had been fully and faithfully observed.
These questions have very recently undergone thorough examination, and have been very fully discussed by the supreme court of North Carolina, in the case of Parker,, adm’r, vs. Wilmington and Weldon R. R. Co., 86 N C. Rep.,
“ ‘Negligence, is a relative term,’ remarks the supreme court of New Jersey, in N. J. Ex. Co. vs. Nichols, 3 New Jersey, 439, “depending upon the circumstances-under which the injury was received and the obligation which rests on the party injured to care for his personal safety. A person crossing a railroad track, though rightfully there, must be on the alert to avoid injury from trains-that may happen to be passing.’
“ ‘The company’s servants may ordinarily presume,’ is-the conclusion derived from an examination of numerous-cases by a recent author, whose work exhibits large research and precision of statement, “ that a person of full age and capacity who is walking on the track at some distance before the engine, will leave it in time to save himself from harm; or, if approaching the track, that he will stop if it becomes dangerous for him to cross it. This presumption may not be justified, under some circumstances,, as when the person on the track appears to be intoxicated,, asleep, or otherwise off his guard.’ Pierce on Railroads, 331. ‘ The more approved statement of the doctrine of contrib
« But, without accumulating references to the numerous ■decided cases, of which the defendant’s counsel has furnished us many very much in point, we prefer to rest our ■decision upon the authority of a recent case, clearly resembling that before us, and in which a large array of cases was brought to the attention of the Supreme Court. Railroad Company vs. Houston, 95 U. S. Rep., 697. Mr. Justice Field says: £ If the positions most advantageous for the plaintiff be assumed as correct, that the train was moving at an unusual rate of speed, its bell not rung, and its •whistle not sounded, it is still difficult to see on what .ground the accident can be attributed solely to the negligence, unskilfulness or criminal intent of the defendant’s ■engineer. Had the train been moving at an ordinary rate -of speed, it would have been impossible for him to stop •the engine when within four feet of the deceased. * * The •failure of the engineer to sound the whistle, or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employés in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the :railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of danger. Had she used her senses, she could not have failed both to hear and
In Southwestern R. R. vs. Johnson, 60 Ga., 667, this court held that where the plaintiff’s husband, at the time he was killed, was lying upon the defendant’s railroad track, where the public road crossed the «ame. she could not recover, although the defendant •“ was negligent in not blowing its whistle at the proper-time at crossing the public road, and checking up its train of cars,” because the deceased, “ according to the evidence; could, by ordinary care, have avoided the consequences to himself caused by the defendant’s negligence.” It cannot be claimed in this case, that the plaintiff’s injury was caused by the unusual speed of the train, or by the failure •of the company’s agents to blow the whistle or ring the bell, for the plaintiff had seen the train a long distance off, and appeared quite indifferent as to its approach, he neither felt nor manifested any apprehension of danger from a collision, he leisurely pursued his way until it came quite near him. When he got upon the side path, he did not get far enough from the cars to prevent his being ■stricken by a plank or piece of timber projecting some six •or eight feet beyond the side of the platform car, but was, .as he insists, at a sufficient distance to avoid collision with the cars. This was the only negligence, if negligence it ■can be considered, on the part of the defendant, to which he can attribute the injury he received. The evidence leaves it very doubtful whether the injury could have been caused by a blow from this plank or timber. It projected so far beyond the place where he was standing, that
In view of the fearful frequency of the unauthorized use -of railroad tracks and embankments as foot paths, and of the perils to which pedestrians, as well as the trains themselves, the persons managing them, the passengers and freights with which they are loaded, are constantly exposed from this highly reprehensible practice, it may be well to state at greater length than has already been done the relative rights and duties of parties to suits brought for redress of injuries happening under such circumstances. In the case of Mulherrin vs. Delaware Lack. and W. R. R., 81 Penn. St., 366, already referred to, the supreme -court of Pennsylvania says: “The company have not only a right of way, but such right is exclusive at all times
How do the cases determined by our own court accord, with these views and principles ? In an early case (Flanders vs. Meath, 27 Ga., 358), the plaintiff, a child of tender years, was seriously injured by a dray passing down the streets of Macon, at a very rapid rate. There was a. school which plaintiff attended, just opposite her parents’ residence and the place where the injury was inflicted; in. this part of the street the school children were in the habit of playing. On this occasion a rain was coming up, and the dray was partially loaded with meal and flour; the plaintiff ran in front of the mules, passed their heads, and was caught under the hind wheels and injured. She had been in the habit of thus running before passing drays and.
So too, in the case of Vickers vs. The A. & W. P. R. R. Co., 64 Ga., 306. Where a child of ten years of age was-allowed, with others, by the defendant’s employes to get on and jump off the cars while in motion, and the engineer-in charge, only one or two days before the injury occurred,, put the plaintiff on the engine while in motion, and then and there bought ground-peas from him, for which he did not pay, and told him to come back for his pay on the day of the injury, and plaintiff, in compliance with the request, returned, and in jumping on the engine while in motion, fell through, and the train ran over his leg and crushed it, so that amputation was necessary, and the court below awarded a non-suit, this court, reversing that decision,, held that where the law raises a presumption of negligence against.the defendant by reason of the mere fact that the physical injury was inflicted by means of running its locomotive, and where, owing to special circumstances touching the conduct of the engineer toward the plaintiff,, a child of only ten years of age, it is not altogether certain that the presumption is rebutted; and where on account of the plaintiff’s tender years and his consequent immaturity of understanding, he is not amenable to so high a standard of diligence in regard to his own safety as that which adults are obliged to observe, the case made by the plaintiff’s evidence is more properly one for the jury than the court, and a motion for a non-suit should be denied.
But the difference between this case and the one under examination does not end here. In Vickers’ case, the boy of ten was invited on the engine, while it was in motion, by the man having charge of it; in this, no such invitation or inducement was held out. On the contrary, complaint had been made, by at least one of the employés of the road, of his intrusion upon its track and embankment.
But it was urged by the distinguished counsel for the plaintiff, who, when on the bench of the superior court, determined the case of Baston vs. The Georgia R. R. Co., reported in 60 Ga., 339, that the present case is precisely within the rules laid down by this court in that, in reversing the judgment awarding a non-suit by the lower court. We respectfully differ from our learned brother; the cases are essentially different in most of their features.
We do not intend, by anything we have said, to intimate an opinion, whether a non-suit in this case would have been proper. No such question was made in the lower
Row, mark the differencé between this case and that under consideration. In the latter, there was no consent upon the part of the company, either express or implied, that the plaintiff should use the road in the manner he did. It was not pretended that there was any express consent;
To consent is one thing, and is quite different from mere forbearance, on the part of the defendant, to seek redress, whenever its rights are temporarily invaded by a wrongdoer. By endurance or toleration of a trespass, we do not understand that any of a party’s privileges and rights are necessarily waived or yielded, or that it ceased to be entitled to the protection afforded by the law. By direct consent to thq use of its way, it certainly waives any right
When a railroad company, by authority of law, goes into possession of land for the objects of its creation, is not that an appropriation to certain great specified public uses ? And can it divert its use to purposes wholly inconsistent with those which it is authorized to pursue, — purposes which may imperil the lives and property of travelers and freighters on its trains, without incurring a forfeiture of its privileges ? To ask, it seems to us, is to answer these questions. Now would it be fair to presume that, from
In the case of the Illinois Central Railroad Company vs. Godfrey, already referred to in this opinion, it is said* (71 Ill. R., 506): “The plaintiff was traveling upon defendant’s right of way, not for any purposes of business-connected with the railroad, but for his own mere convenience, as a footway, in reaching his home, on return after a search for his cow. There was nothing to exempt him from the character of a trespasser and wrong-doer for so doing, further than the supposed implied assent of the company arising from their non-interference with previous like practice by individuals. But because the company did not see fit to’ enforce its rights and keep people off its-premises, no right of way over- its ground was thereby acquired. It was not bound to protect or provide safeguards for persons so using its grounds for their own convenience. The place was one of danger, and such persons went there at their own risk, and enjoyed the supposed license subject to its attendant perils. At the most, there was here no more than a mere passive acquiescence in this use. A mere naked license or permission to enter or pass over an estate will not create a duty, or impose an obligation on the part of the owner to provide against the danger of accident. Sweeny vs. Old Colony, etc., Rwy. Co., 10 Allen, 373; Hickey vs. Boston & Lowell Rwy. Co., 14 Ib., 429; Phila. R. R. Co. vs. Hummell, 44 Penn. St., 375; Gillis vs. Penn. Rwy. Co., 59 Ib., 129.
For all the purposes of this suit, the plaintiff stands in no more favorable condition than that of a wrongdoer and trespasser. He was not, at the time of the accident, in the
That the plaintiff was a trespasser, is equally as clear from the Code as from these several decisions. “ The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a cause of action. Code, §3013. “ Bare possession of land authorizes the possessor to recover damages from any person who wrongfully, in any manner, interferes with such possession.” Ib., 3015. Again, and still more pointedly, is the following: “ The owner of realty having title downward and upward indefinitely, an unlawful interference with his rights, below1 or above the surface, alike gives him a right of action.” Ib., §3020. So, such an interference “ with a right of way or of common is a trespass to the party entitled.” Ib., §3021.
It is not perceived how this principle can be affected by a difference in locality, as in a town, city, village or county, or by the number of persons violating the right, or the frequency or length of time in which it is violated by any or all of those taking such unwarrantable liberties. Circumstances alter cases, but principles never; circumstances-vary constantly, but principles are permanent and unchangeable, however numerous and diversified may be the facts to which they apply. In the case of the Illinois Central R. R. Co. vs. Godfrey, the injury in question occurred in the incorporated town of Decatur. A large number of the inhabitants of that town were in the habit,
The case of Holmes vs. The Central Railroad Company, 37 Ga., 393, forms no exception to them, in any material respect. “The spot at which the engine killed the plaintiff’s slave (in that case) was seventy or eighty yards from the public road; but it was on a part of the track used very much by foot passengers to make a short cut from one to another of the public roads which was known to defendant’s agents. It was down grade at that point, and the view was there obstructed by a cut. The killing took place near midnight. The blow posts were not at such distance from the public crossings as was required by law, and it was doubtful, from the testimony, whether the engineer blew the whistle when he passed the blow posts. The engine was going at the usual speed at the time ; the slave was on the track, but not standing up; the engineer ■did not see him until he was struck by the engine and then supposed he was a hog or a sheep.”
Among other things, Judge Gibson, of the superior ■court, charged the jury “ that the track of a railroad company is not a public highway; and persons who use the same in pursuit of their ordinary private business, except at a public road crossing, are actual trespassers;” and this ■court addressing itself to that portion of the charge said: “By the act,” (regulating the conduct of trains at public •crossings) “ certain things were required to be done by railroads, and certain liabilities incurred, in case of failure. This act was intended for the protection of persons and
This decision settles two pionts, viz.: that such use of the railroad track is a trespass, and that the consent of the company thereto can not be inferred from its habitual use, although its agents were well apprised of the fact that it was thus used. It is true, in this case, that the judge in the lower court refused to charge, at the request of the defendant’s counsel, that the defendant was not liable, unless guilty of gross negligence, and that this court approved the refusal; but it is also true that this court held that the new trial, setting aside the verdict in favor of the plaintiff, was very properly granted, on the ground that the verdict was against the evidence. It would be a mistake to suppose that the conclusion here is based upon the ground that the defendant was not guilty of gross negligence, in the absolute and statutory sense of that term. Under the numerous cases cited from our own reports, it is quite apparent that complete protection is afforded the defendant, 1st, where it is shown that “ all ordinary and reasonable care and diligence ” have been exercised; 2d, where the plaintiff could, by ordinary care, have avoided the consequences to himself, although caused by the defendant’s negligence; 3d, where the injury is done by plaintiff’s consent, or is caused by his own negligence.
These rules are taken from Code, §§2972, 3033 and 3034,
It has been shown, in the course of this opinion, that even where the plaintiff could, by ordinary care, have avoided the injury caused by the defendant’s negligence,, or where it is solely attributable to his own negligence, yet if the conduct of the defendant was so grossly negligent as to evince wilfulness, or if he perceived the plaintiff’s danger in time to have averted it, and made no proper effort to do so, then he would be liable for the consequences. This addition is essential, as it seems, to carry into full effect the evident design of the Code, although that purpose may not be therein expressed in terms. The term “ gross negligence,” used in connection with such circumstances, has a relative, rather than an absolute and strict signification, and as thus used, is the equivalent of acts which result from a failure to observe that “ ordinary and reasonable care and diligence,” prescribed by our Code. It was certainly used in this connection in all the cases herein cited, including that of Baston vs. The Georgia R. R.
The complaint made in this case by one of the defendant’s employes to the plaintiff, and the warning thus given him of the danger he incurred by using this track and embankment as a footway, deprives him of the right to complain of the injury he brought upon himself by his failure to heed this friendly admonition and caution. Hughes vs Macfie, 2 Hurlst., and Colt., 744. In Chicago and N. West. R. R. vs. Smith, 46 Mich., 504: “A child, eight years old, was injured by the sudden starting of a locomotive, on the step of which he had been standing, and from
The Central R. R. vs. Glass, 60 Ga., 441, bears no resemblance to the present case, and is wholly unlike it in .all its material features. Glass got on the cars of the defendant, drunk, with the knowledge and consent of its conductor. Failing to give up his ticket when called upon, he was carried past three stations, and when in three-quarters of a mile, or a mile, of the fourth station, he was put off by the conductor andbrakeman, while still drunk, on an embankment, which was two hundred yards from a crossing, he saying that he would walk to Jonesboro,butstartedin the opposite direction. When he got about a mile off, he laid down on the track, and was run over and seriously hurt by the up train from Macon to Atlanta. Although the conductor and engineer of this train had been notified that he was put off at this point by the down train, and requested to keep a lookout for him; they failed to do this. The verdict in his favor was properly sustained by the lower court and by this court. Glass was rightly on that train as a passenger, and was under the care of the agents ■of the road. If put off for failing to produce a ticket, he should have been ejected at some station or other safe place ; and in his then drunken and helpless condition, he should not have been dumped off without his safety being looked after. The difference between that case and this is most marked. Not to mention others, the plaintiff here was on defendant’s track, without the knowledge of its •agents, and in defiance of their warning and request to
Believing that the defendant’s conduct amounted to gross negligence, and that, by the exercise of ordinary care, the consequences to himself could have been avoided, it follows that this verdict should have been set aside and a new trial granted, upon the ground that the finding is contrary to law and evidence.
“ A .railroad company is bound to use ordinary care in the running of its trains, to prevent them from coming in collision with the person of another; and this it is bound*249 to use, even if that other is, on his side, in some degree negligent ; therefore, if damage happen to such other person by a collision, which- the company, by the use of ordinary care, might have prevented, the company must make good the damage.”
It is objected by defendant’s counsel, that the case put, was clearly one of contributory negligence and that his honor told the jury, “the company must make good the damage,” from which they were left to infer that they were at liberty to find the entire amount of the damage done to the plaintiff, without making any abatement for the negligence chargeable to him. The error complained of is manifest. See this case 64 Ga., ut supra, and Code, §§2972, 3034, and cases cited in edition of1882, under each of these sections. The judge certifies that, in connection with this request, he called the attention of the jury to his general charge. It does-not appear, however, that he specified the portion of the charge that had relation to this particular subject. The portion of the charge referred to by him correctly laid down the measure of damages in cases of contributory negligence, and was in apparent, if not direct, conflict with the charge requested and given. The error complained of was not corrected in this way; the attempt to do so was well calculated to mislead and confuse, instead of enlightening, the jury. The charge • should have been refused altogether, or the objectionable portion should have been stricken, and the rule prescribed by the Code for measur. ing damages in such a case substituted.
After it was prepared, his extreme sickness forbade its being presented, and he had no opportunity of finally revising and of approving or disapproving, or modifying it.
Judgment reversed.
Concurrence Opinion
concurring.
The words “ must make good the damage,” without qualification, would convey the idea that the company must, in such a case, pay full damage, and thus withdrew from the jury the consideration of the doctrine of contributory negligence as lessening the damage which the jury should give in such a case. No matter how negligent the company may have been, yet if the plaintiff was also negligent, full damage ought not to be given, but the damage should be diminished in the proportion which the negligence of the plaintiff bore to that of the company. So declares our Code, and so this court has ruled again and again. The doctrine was applicable to this case, and should have been considered by the jury and weighed in the scales ■of the evidence, and decided as their judgment on those, facts determined, on a scrutiny of the negligence of both parties. The effect of the charge as given was to withdraw the contributory negligence of the plaintiff, if the
It is true, that in the general charge the court does give the jury that doctrine, but this request, coming after-wards, and being given without any- qualification at the time it was given, was well calculated to mislead the jury, and may have done so.
I am the more satisfied to concur with my colleague in the grant of a new trial in this casé, because I believe, from our consultations upon it, that my late much-lamented colleague, Judge Crawford, was very decided in the opinion that it ought to be granted; and had he lived, he might possibly have gone to the full extent of denying any recovery, to which Judge Hall has gone in the opinion just delivered.
The rule in the case of persons not passengers is that which I have given above, all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” Code, 3033.
And this rule has been applied by this court to a person not at all rightfully on the railroad track, but wrong
In that case, gross negligence was expressly denied to be that neglect which would make the company liable, but it was held by the unanimous court that the measure of the liability is “ all ordinary and reasonable care and diligence, not gross negligence as was insisted by counsel for defendant in error,” in that case. But if gross negligence be the rule in the case at bar, it is for the jury to say whether the neglect to ring, to slacken speed, and having the scant-ling projected out as it was, be not gross negligence.
Such is the law of this state, plainly written and printed in her statute book and ruled and applied by her highest court.
The question of negligence is for the jury. 34 Ga., 330, and following cases passim. The quantum of diligence-required of the railroad company by the law being given by the court, it is for the jury to say whether or not facts proved make that quantum, subject of course to a review by the court to see whether the jury had enough testimony in to support the verdict. As the case goes back, I dislike to argue the facts or pass upon them at all. The views submitted by my associate make it necessary that I say that, if the railroad train swept through that village without ringing its bell or slacking its speed, with a scantling projecting unusually from its car, beyond the track, though within the right of way of the company, and thereby a youth was hurt in its rapid transit, the company is liable,, unless by the use of ordinary care he could have avoided the consequences to himself of such transit, or the injury was caused by his own negligence alone. If both himself and the agents of the company were to blame, or were at fault, but neither the sole cause of the injury, and if he-could not by ordinary care have avoided the consequences to himself, then the damages should be apportioned in proportion to the default of each. Under our law, it is. for the jury to pass upon all these questions of diligence and
Such, I think, is the law of Georgia applicable to the facts of this record; and I do not propose to examine the law of England or of other states on the issues made. The statutes of this state and the judgments of this court thereon construing them bind me.
I think that the unanimous decision in the 37th is the law rather than my obiter in the 60th. Code, §217. See also The Central Railroad vs. Glass, adm'x., 60 Ga., 441, where a recovery was had because the conductor and engineer were not sufficiently diligent in looking out for Glass, who was lying drunk 'on the road a mile from the place where he was put off. There the court say: “Leaving out of view altogether the conduct of the conductor and brakeman (of the down train) in putting Glass off at the place and time they did so, the law presumes that the up train which did the damage was negligent, and there is, in our judgment, no sufficient proof of diligence on the part of the officers of that train to rebut the presumption.” So that Glass, a naked trespasser, recovered on the ground, not of gross negligence, but ordinary negligence.
• This case at bar was here before. It is reported in 64 Ga., p. 475. The case was then sent back upon the law substantially as indicated above, and no intimation was made by the court that there could be possibly no recovery. On the contrary, on errors of law it was then remanded; on an error of law I now concur in again remanding it. The line of my brother’s argument leads inevitably to the conclusion that, underthe facts, there can
I add that the court below may have charged the request because it was the language of this court in some case here; but what this court lays down as law is to be construed in the light of the facts of each case, and it will be found unsafe for counsel to copy from the reports an abstract principle of law, and request it to be charged, and for the court to charge as so requested. Besides, sometimes unguarded expressions of the individual member of this court writing the opinion may mislead, because those expressions needed qualification.
From the above it will be seen that the opinion of my brother, as a whole, is his own, and not that of the court; because but two of the court sat in final judgment of the case, and I cannot assent to ’ many views of the law which he has expressed as applicable to and ruling and controlling the case at bar. This I say in entire respect for the learning and integrity which distinguish him as a lawyer and a judge.