142 Ga. 513 | Ga. | 1914
(After stating the foregoing facts.)
Exceptions are taken to the parts of this charge that are enclosed in brackets. The quoted charge is composed of literal extracts taken from the cases of Central R. Co. v. Brinson, 70 Ga. 207, Western & Atlantic R. Co. v. Bailey, 105 Ga. 100 (31 S. E. 547), and Central R. Co. v. Denson, 84 Ga. 774 (11 S. E. 1039). These cases concerned injuries to persons walking upon railroad tracks. In the Bailey case the question before the court was as to whether the petition was good on demurrer; and it was held that under the pleaded facts a-cause of action was stated,—in other words, that the pleaded facts authorized an inference of negligence. In the Brinson and Denson cases the court was discussing the sufficiency of the evidence as establishing negligence. In none of the cases did the court undertake to declare, even inferentially, that the statements quoted from the opinions were proper to be given in charge to a jury. As has been frequently observed, it is not proper to give in charge every expression to be found in the reported opinions of this court. These expressions sometimes are used arguendo, and sometimes relate to entirely different subject-matters than to which they are applied in the trial of another case. Negligence, where the act is not forbidden by law, is fundamentally a question for the jury, and it is improper to tell the jury that the law presumes negligence from a given set of circumstances. It was improper for the trial court to tell the jury that the engineer might presume that the decedent would get off the track, as a matter of
It is fairly inferable that the engineer, in approaching a regular station where his train was scheduled to stop, saw the decedent practically half way between the point where the decedent came into view of the engineer and the station. The engineer by subsequent measurement ascertained that he was about 1,110 feet from the point where he first saw the decedent. He had just given the signal for the approaching station. He says the decedent turned his head as if he heard the signal, but further states that he continued walking down the track in the direction of the station, apparently heedless of the train approaching him from the rear. Without further warning, the engineer ran his train until he was near Cagle’s crossing before he undertook to give any further signal or attempt to stop his train, which he testified was running at a rate of speed of 30 or 35 miles an hour at this point; and, according to his own testimony, the engine was so close to the decedent that, notwithstanding his application of emergency brakes, he was unable to stop the train until it had passed the point where it had struck the decedent about 400 feet. According to the evidence, the track where the decedent was killed was commonly used as a thoroughfare by the public in going to and from the depot. It was a question for the jury to decide whether the conduct of the engineer, under the circumstances, in failing to earlier check the speed of the train, in not blowing the alarm whistle sooner, or in not taking other precaution, when he saw that the decedent was apparently
Judgment affirmed.