73 Ga. 557 | Ga. | 1885
Carr sued the Georgia Railroad and Banking Company for damages, in that, by its negligence in blowing its whistle unlawfully and unnecessarily within the limits of the city of Augusta, it caused the horse, drawing a wagon in which plaintiff was seated, to run away and badly injure and cripple him.
The jury found seventeen hundred dollars for the plaintiff, and the railroad company being denied a new trial, excepted.
The facts disclosed are, that wil bin the limits of the city of Augusta the train came dashing along at a speed of twelve miles an hour, and blew its whistle unnecessarily and continuously loud and shrill, and that this caused the horse to run away, and the unhappy accident, which badly hurt the plaintiff, to occur. These facts do not rebut that presumption.
They show further, that plaintiff was in a wagon with a young man, who gave him a seat, with a horse said by the young man to be gentle and not afraid of cars; that the young man got out, however, on the approach of the train, and stood at the horse’s head, leaving the plaintiff in the wagon; and the testimony is that, but for the whistling and screaming of the engine, no harm would have been done, but when that occurred, the horse broke away, and came near running over the young man at his head. The fact that the plaintiff remained in the wagon when the driver got out may have been an act of negligence in the plaintiff, but it does not rebut negligence in the company’s agents. Nor does it show that this negligence was the sole cause of the injury. It simply shows what might be contribu
Therefore, the presumption remains fixed, that the absence of diligence — the negligence which the presumption of law fixes on the company,unless rebutted — is not rebutted, but stands fixed. So far from rebutting that negligence, affirms it. A gentle horse, accustomed to railway trains, which women often drove, runs away on account of an unnecessary blowing of defendant’s whistle within the limits of Augusta, and, notwithstanding the driver stands at the horse’s head, he runs away with the wagon and badly injures the plaintiff. This is the case plaintiff makes. Surely it does not rehut, but confirms the presumption of wrong-doing and negligence in the servants of the company, who are not one of them sworn to explain then-conduct. It would seem that some verdict was demanded for Ihe plaintiff, and, as the defendant concedes that the verdict rendered is not excessive, why should it not stand?
It appears from the record that the first part of this charge was in the language requested by the company,. and the balance as requested by the plaintiff. The substance of it is, “ sio utere tuo ut non leerlas alienothat • is to say, in the exercise of its right to blow whistles and i make noises incident to its property franchise, let the railway companies, when approaching or alongside streets and thoroughfares, moderate, so far as they reasonably can consistently with that franchise, the exercise of this franchise ■
It was ingeniously argued by the very able counsel for 'the company, Mr. Gumming, that the object of the act of 1875, the proviso above cited, was intended only to shield the engineer from punishment for not blowing, if he rang, ■■and to punish him if he did neither. Such, however, is not the correct - construction of the law, as we look at it. It is a remedial statute. The old law — its evil — was this (unearthly and continuous blowing of whistles in towns
This view of the case renders it unnecessary that we consider the ordinance of the city of Augusta or construe it, because the blowing of this whistle, however mildly and cautiously done, in the city was an unlawful act. No unlawful act is diligence in any business, and that mere act rivets negligence on the company. Whether the act was within the limits which the city ordinance embraced or not is thus immaterial, because the law of the state, without action by the city, prohibited the blowing the whistle in Augusta; and if error was committed by the court in construing and charging upon that ordinance, it cannot affect this verdict. It must stand, because there was an unlawful act which caused the injury; the plaintiff could not have foreseen that this unlawful act would be done within Augusta’s bounds; he could not have avoided it, because he did not and could not foresee it; and his own negligence in sitting in the wagon, if it was negligence was merely contributory, and not the sole cause of his injury ; and fhe verdict, whose amount is not complained of, shows that the jury considered that carelessness on his part, and that negligence or carelessness on his part becomes shadowy and insignificant when he had reason to feel safe with a gentle horse if the whistle had not screamed, and which he had the best reason to think would not scream, because the law forbade the engineer to unthrottle it at that spot.
Judgment affirmed.
At the place where the horse took fright, the street or roadway ron alongside the railroad, and was separated from ithyawire fence; hut a short distance from that point there was a crossing.