Georgia Railroad v. Williams, 74 Ga. 723

74 Ga. 723 | Ga. | 1885

Lead Opinion

Jackson, Chief Justice.

The main question presented for our adjudication by the plaintiff in error in this case is, whether non-compliance with the law in regard to the duty of railroad companies, in respect to the erection of blowing-posts, the blowing and continuing to blow whistles, and the checking and Continuing to check speed in running, so as to keep the train under control at public crossings, may go to the jury as a circumstance showing negligence, where the person injured was hurt, some two hundred yards beyond the crossing, on the track, without permission of the company i o be there ?

The question is answered in respect to cattle and horses by adjudications of this court. In 64th Ga., 649, this court held that the owner of a cow could recover her value, where she was killed between the blow-post and the crossing, if the failure to blow and continue blowing, and to check and continue checking, operated as a cause of the killing. Judge Crawford, delivering the opinion of the court, says: “The law governing the running of trains is co-extensive with its lines, and if there be higher degrees of diligence, greater caution, unusual alarm signals and less speed required at some points than at others, and the testimony shows that the damage complained of was within the limits of points thus protected, it would be error in the judge not to give the whole law in charge to the jury.”

This decision was rendered in a case where the cow was killed two hundred yards from the crossing, between it and .that blow-post which the train had passed without complying with the statute laid down in the Code, sections 708 et seq.; and that careful judge, who wrote the decision, was commenting on the exception to a charge that “ the statute makes it the duty of those in charge of a railroad train approaching a public road crossing, when the train arrives within four hundred yards thereof, to check the speed of the train, and to continue to check the same, that it may be stopped in time, should any person or thing be crossing the track of the railroad at such public crossing. . . . Where a statute imposes a duty on a railroad company in relation to the running of the trains, if it violates that duty and an injury results from such violation, then the company would be liable for the damages caused thereby.” And then the charge cautions the jury that “ the failure to comply with the law must operate as a cause of the injury.” Now, it is in a comment on this charge, and in case of a cow killed two hundred yards from the crossing, that the court , said, through Judge Crawford, that “ the testimony showed that the damage complained of was within the limits of points thus protected,” and that “ it would be error not to give the whole law in charge to the jury,” referring to this blow-post law. The cow was midway between crossing and blow-post, and that spot was within the protected points. It appears that in the mind of the court any spot between the blow-posts and the crossing was within those protected points.

But it is argued that this damage occurred between the blow-post which the train passed before reaching the crossing, and where it was required to blow, and not at a spot beyond the crossing from that blow-post, and that the rule does not apply to a spot beyond the crossing from that blow-post.

In 65 Ga., 631, in the case of the killing of a horse, the same rule was applied to the damage when done beyond the crossing from the blow-post which the train had passed The same cautious and conservative judge again delivered the opinion of the court, and used stronger language than before. In that case, he was commenting on an exception to this charge: “ The law requires railroad companies to establish, blow-posts, and to blow the whistle four hundred yards before reaching a public crossing, and to continue to blow, to check ■ the speed of the train,' and to continue to check, so that they may stop if any person or thing should be crossing the track, and is intended to apply directly to the protection of such crossing.. But if you believe that this company failed to comply with this law, and that such failure contributed to the killing of the plaintiff’s horse, you may consider this in connection with all the other facts and circumstances.of the case in determining whether or not the killing was caused by the negligence of the agents of- the company.”

In. respect to the abpve charge the court say: “Looking at this, charge in the light .of the .evidence and the. law governing such cases, we cannot hold that it was error. Trains are to be run in obedience • to law, and if they should be run at any time or place in violation of a positive penal statute of the state, such act is not only one of negligence, but of crime, and any injury to others resulting therefrom must be responded to in damages. Signal posts and the sounding of the alarm whistle, it is true, are intended to protect life and property at public crossings, but more than this is required. The employes of the roads must have their trains sufficiently in hand to warrant absolute protection at those points, and a failure to do this is negligence. So that in this case, had the engineer and the men under him obeyed the law, then the speed of the train could have been checked in time to have prevented injury on the crossing itself; but having disobeyed it, he was unable to check it in time to prevent the injury which occurred a short distance beyond. The absence of the signal post, the failure to give the usual warning upon approaching the crossing, as well as the neglect of having his train under control at a point where the law declares it his duty to do so, may- well be considered by the jury in determining upon the question of negligence in killing the horse just at the place where he was killed.”

The original record, shows that Ihis horse was killed something over two hundred yards from (he crossing beyond the blow-post passed by the train, and though he may have run some of (he distance, yet it could not have been from the crossing or very near it. The language, “ a short distance from the crossing,” was doubiless used comparatively by (he court. It was between these points that the judge had, in the case in the 64th, supra, regarded as the limits of protection under the blowing-post laws.

So that the only question that can be raised, under these decisions, is this, does that law which protects the life of cattle and horses, or injury to them, also protect men within the'same limits? Why not? True, as argued, mankind have more- intelligence; yet human life is more valuable and precious in the eye of the law everywhere. The statute itself embraces men. Its language is,“ person or thing.” True, it uses this language in speaking about a person or thing crossing the track; but it gives each the same protection of the blow-post laws. Code, §708 et seq. And this court repeats its language in respect to persons as well as things in the cases cited, although dealing then only with things, the cow and the horse. If both are protected at the crossing, it is not easy to see why both are not within the protected points, within which this court has held that it pro( ected things.

To apply the law to this case: Had the whistle been continuously blown, and the speed of this train been continuously checked, up to the crossing, this man in all probability would not have been hurt. He would have; in all human probability, heard the continuous blowing within one or two hundred yards of him at the crossing, when he could not hear a blast at a post five or six hundred yards from him. It is admitted that at the crossing, or nearer to it than the blow-post, there was no blowing at all, and none anywhere, but the blast or two at the four hundred yard blow-post.

Had the train been kept in check up to the crossing, so as to be stopped, if necessary, it would have bardly acquired speed enough to have hurt the man, or before it had time to acquire it, it would have been under control and might have been stopped before it struck him ' It is clear, therefore, that the jury had evidence enough to show that this criminal negligence contributed to the damage, if indeed it was not the only cause of it.

In Holmes, administratrix, vs. The Central Railroad and Banking Company, 37 Ga., 593, this point was only incidentally in the case. The court below did not certify to the exception to the charge involving the point, but this court affirmed the grant of a new trial, on the ground that the facts, taken all together as they appear in the record, show the exercise of all ordinary and reasonable care and diligence on the part of the agents of the railroad company on that occasion. What is said about confining the injury to the crossing alone as recoverable damage, is merely the reasoning of the judge delivering the opinion, giving that fact as a circumstance, together with the darkness of the night, and other circumstances, to show the occasion upon which the question of diligence in the company was to be determined. For the judge also says that the fact that the place where the negro was killed was a part of the road where persons were in the habit of walking, as in the case at bar, might be considered in measuring that diligence.^*

2. There was no error in denying the company the right to open and conclude the case on the plea of justification.

3. There is none in admitting the rules of the company to go in evidence, though not public'rules, but intended for the guidance of its officers and agents only as to what should be done when the train was running backwards.

It showed that the company regarded that mode of moving the train more dangerous and requiring more care, and was admissible for that purpose, if no other.

4. The requests of plaintiff in error were substantially given in the charge, except wherein they conflict with this opinion above, and wherein they do conflict they ought not to have been given.

5. The evidence is sufficient to support the verdict, both in the finding lor the defendant in error and in the amount of the damages as not excessive, and being approved by the presiding judge, it must stand.

Judgment affirmed.

Blandford, Justice, concurred, but furnished no written opinion

* As to the right of persons near a crossing to rely on the law of signals at crossings, sec also Geo. R. R. vs. Carr, 73 Ga., 557.

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Dissenting Opinion

Hall, Justice,

dissenting.

I am unable to concur with the majority of the court as to the application of the negligence implied from a failure to sound the whistle and check the speed of a train, so as to have it well in hand when approaching the crossing of a public highway over the railroad track, to an intruder on the track, who, at the point of collision, was over two hundred yards beyond the crossing. I think the case of Holmes vs. The Central Railroad, 37 Ga., 593, which was a decision rendered by a full bench, is directly opposed to their view, and that that decision is not at all shaken or in the least modified by the decisions relied on to uphold this finding in the 64 Ga., 649, and 65 Id., 631. In the first of these cases, a cow was upon the track between the signal post and the crossing, and in the last, a horse was on it some twenty-five yards beyond the crossing when first seen; in both cases, there was a failure to observe the requirements of the statute as to sounding the whistle and checking the speed of the train, and the company was properly chargeable with the negligence of its agents, as it would have been had the cow or horse been elsewhere on the track, and no effort had been made to frighten them from it, or to check the speed of the train, if they had been seen in time to prevent the collision by resorting to such precautions. The company would not have been in the exercise of “ all ordinary care and diligence ” under such circumstances. If it would keep stock running at large off its right-of-way, it should enclose it, or in the absence of such enclosure, it should use every reasonable precaution to drive them from the track, for under such circumstances their presence on it is not unlawful, nor is their owner subject to penalties for allowing them to be there ; whereas, a person who, contrary to the will of the company, intrudes upon its track is guilty of a misdemeanor and is liable to indictment and punishment therefor. Code, §4437. The company is bound to greater care in the case of irrational animals, incapable of appreciating danger, and of providing against its consequences, than in the case of intelligent human beings, whose reason instructs them as to the perils of any particular situation, and who, by the exercise of their senses, can avoid the calamities which may arise therefrom. In the case of a cow or a horse found walking along the track of a railway, there is no presumption that it will leave it in time to escape injury, but just the opposite presumption obtains in the case of a man; and it has been held that whatever the company has a right to presume, they have a right to act on, and to continue to act on it, until they discover that the person is not likely to escape the peril, when they are bound to exert themselves to avoid the calamity. Sims vs. Macon & W. Railroad, 28 Ga., 93 et seq. The plaintiff in this case had been an employé of the company; he lived in the vicinity and was familiar with the situation; he seems to have acted with utter indifference, if not with culpable neglect, in failing to make use of his faculties to avoid any danger to which he was exposed; he was walking on the end of the cross-ties next to the track, and nothing appears to have put the employes of the company upon notice that he would not or could not step aside and thus avoid the injury. It seems to me that, by the exercise of the slightest care, he could have avoided the serious consequences to bimself. It is quite apparent to my mind that he was at fault in using this track as a pathway, and was utterly negligent while so using it in failing to look out for danger and in making preparations to avoid it. For these reasons, and for others given more at length in my opinions in the cases of the Central Railroad vs. Brinson, 70 Ga., 207, and in The Savannah, F. & W. Railway vs. Stewart, 71 Id., 427, I am unwilling to hold out inducements to persons to trespass upon the rights of others, in the preservation of which rights the public are largely interested, by rewarding them with heavy damages .against the party wronged by the trespass, especially where tlieir own indifference to consequences, if not their utter want of care, is apparent, and it is at least capitally doubtful whether the opposing party was at fault. I think there was nothing to base the heavy finding in this case upon, and that upon every principle of law, as I understand it, the plaintiff had no right to his suit, and that there should be a reversal of the judgment refusing a new trial.