133 Ga. 664 | Ga. | 1909
(After stating the foregoing facts.)
The plaintiff was injured in the switch-yard of the defendant company, where there were many interlacing tracks, and where switching was constantly going on. This was known to him. Nevertheless he left the regular street crossing, or what was claimed to be such, when he went to the cemetery gate, and to save an extra walk, because the gate was closed, went up among the tracks, in the dark, in order to cross over to another street which ended at the yard. After he had proceeded forty or fifty yards, he undertook to cross a track which was between him and this street. He saw the end of a car not more than six or eight feet from him, but he could not state positively whether it was standing still or in motion. He could only say in his testimony that if it was moving he could not tell it. Nevertheless he took the chance, ceased to look at the car, started across the track, and was hurt by the car, which must have been already in motion, or have been put in motion and run some feet while he took a step or two, — most likely the former. There was no evidence to indicate that the agents or servants of the company knew of his presence, or had given him any license to be there. Even in an age when hurry and speed are such prominent
It was sought to make the company liable on the ground that its agents should have anticipated the presence of persons at that place, and have used ordinary care to have discovered them. If so, this, duty must have arisen either because of the driveway which formerly existed along the wall of the cemetery, or because the circumstances put them on notice of the probable presence of a trespasser. As to the first suggestion, it is enough to say that the driveway existed no longer. It had been destroyed some two years before, and the plaintiff knew the condition there. When he entered this yard, relatively to his own diligence he took the situation as it was. It was not a question as to whether the company had a right, probably two years previously, to destroy the driveway, cover it with tracks, and make it a regular part of the yard, or whether any right of passage over it. had been acquired by the public. Moreover, it did not appear at all certain that the plaintiff was in the space formerly used as a driveway when he was hurt. He went back further toward the center of the yard, and walked up between two tracks. As to the other ground, some of the decisions of this court have indicated the existence of a difference as to whether any duty arises, from known frequency of use by trespassers, to look out for them in a switch-yard, where there are many tracks and constant shifting, drilling, and changing of cars, and on a main line of travel, where trains move in the accustomed duties of transporting persons and things from one place to another. Rome R. Co. v. Tolbert, 85 Ga. 447 (11 S. E. 849); Central R. Co. v. Rylee, 87 Ga. 496 (13 S. E. 584, 13 L. E. A. 634) ; Grady v. Georgia R. Co., 112 Ga. 668 (37 S. E. 861); Curtis v. Southern Ry. Co., 130 Ga. 675 (61 S. E. 539). See also 3 Elliott on Eailroads, §1258. Of course this does not mean that every switch or siding, at a station or in the country,
The answer of the City of Atlanta in another litigation between it and the railroad company would not have saved the plaintiff from a nonsuit had it been admitted in evidence. At most it could only have shown notice to the company of a claim that the crossing at the cemetery gate was a public crossing, that the public had been accustomed to use the driveway alongside of the cemetery before it was cut down and destroyed by the company, and that many people used it, and a contention that the public had acquired rights in it. It could not have given this plaintiff any right to recover, under the evidence introduced by him. Western & Atlantic R. Co. v. Bloomingdale, 74 Ga. 604, 610, 611.
Judgment affirmed.
