Howard v. Savannah Electric Co.
79 S.E. 112
Ga.
1913
Check Treatment
Hill, J.

(After stating the foregoing facts.) The decision in the case of Thomas v. Central Railway Co., 121 Ga. 38 (48 S. E. 683), is relied upon by the defendant as controlling in this case. This court there held: “One who deliberately goes upon a railroad track in front of an approaching train, thinking that she can cross before the train reaches her, and miscalculating its speed because she is in front of it, can not recover for injuries resulting from being run down by the train, although the company’s servants may have been negligent in running at a high rate of speed at that point, and also in failing to cheek the speed of the train at a public road which crossed the track between the place where the train was when first seen by the plaintiff and the point at which the injury occurred. The above facts being set out in a declaration, a demurrer thereto was properly sustained; for it is clear, from the allegations made, that the plaintiff, by the exercise of ordinary care, could have avoided the injury.” That case is distinguishable from the'instant one. That case involved a steam railroad on which the rate of speed and the danger is much greater than in the case of a street railroad, where ears stop usually at every street crossing, and the speed is regulated by city ordinance. In the present case, the speed was not to exceed ten miles an hour. The public have the right to the use of the street-car tracks for the purpose of crossing and recrossing, without being regarded as trespassers. At street crossings, owing to the low rate of speed and the light construction and equipment of the cars, the public have the right to expect that they will be under control. The public has never surrendered the entire use of the streets. In the Thomas case, supra, the deceased had deliberately gone upon the tracks of a steam railroad, knowing of the approach of a train, and, miscalculating its speed and her ability to cross in safety, took the chances and was injured. In such a case, of course there could be do recovery. The deceased in that ease was guilty of such contributory negligence as to bar a recovery.

In the present case, the deceased was an old man, 62 years old, and deaf. He was in a public street, attempting to cross. He was *485not a trespasser, but had a right to the use of the tracks. It is true that in the petition it is alleged that the plaintiff’s husband looked in the direction from which the car was coming, before going on the tracks, and that at the time the car was far enough away to have enabled him to cross in safety, but that owing to the high and unlawful rate of speed at which the ear was running it overtook him just as he was stepping from the car track, and struck his right knee-cap, breaking it, from the effects of which he died. But all these allegations were denied by the answer, including, of course, the allegation that the deceased looked in the direction the car was coming. But the petition did not allege, nor did the evidence show, that the deceased ever saw the approaching car before he stepped upon the track where he was struck. Indeed, the evidence of the motorman tended to show that he did not see the deceased until he was within 15 or 20 feet of him, when he sounded the gong, applied the brakes, and endeavored to stop the car, but could not until the deceased was struck. He was in as good position to see the deceased as the deceased was to see the car. The issue as to the speed of the car, the negligence of the defendant’s agents, and the diligence of the plaintiff’s husbaud were thus in issue. The evidence for the plaintiff tended to show that immediately before the ear struck the deceased the high speed of the car attracted the attention of some of the passengers. The conductor was asked why he was running so fast, and whether that was his last trip. He replied that he had 'another trip to make. The witness “had hardly gotten the words out of” his mouth when the deceased was hit by the ear. The car was going 18 or 20 miles an hour. The ear Tolled 30 or 40 feet after it struck the deceased. The evidence for the defendant tended to show that the motorman had about two years’ experience, and was 22 years old. The car was going not more than 6 or 8 miles an hour, and he based that estimate of the speed of the car on the fact that “we were going to make schedule.” The motorman noticed the deceased just as he stepped off the curbstone on the west side of Whitaker street. He was ringing his gong continuously all the way out there. When the deceased stepped off the curbing he was in a position of safety. From the curbing to the western rail is 'about 7 feet. When the motorman saw the deceased step off the curb he rang the gong especially for him and “halloed” at him. He did not stop, but *486walked across the track very rapidly. When the motorman saw that the deceased did not heed the warning, he tried to stop by applying the brakes and reversing the current. The car went 12 feet after striking the deceased. Although the petition alleged that the plaintiff’s husband looked in the direction the car was coming, it does not appear from the petition or the evidence that the deceased ever saw the approaching car, or that he heard the gong or shout of the motorman.

Under these circumstances, we can not say, as a matter of law, that the effort of the plaintiff’s husband to cross the track ahead of the car at a public crossing in a city was such an act of contributory negligence on his part as to amount to a failure to exercise ordinary care. Whether it was or not, under the circumstances of this case, was a question of fact which should have been left to the jury to determine. It was a question for the jury to decide whether the defendant was or was not negligent in the running of its cars at the time of the injury as alleged in the petition; and it was also a question for them, under the evidence, whether the plaintiff’s husband was guilty of such a want of ordinary care or contributory negligence as would bar a recovery. Lamer v. Central R., 71 Ga. 222 (3); Harrison v. Georgia Ry. &c. Co., 134 Ga. 718, 720 (68 S. E. 505); Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708, 713 (39 S. E. 306, 54 L. R. A. 802); Williams v. So. Ry. Co., 126 Ga. 712 (55 S. E. 948); Western & Atlantic R. Co. v. York, 128 Ga. 687, (4) 688 (58 S. E. 183). The direction of the verdict for the defendant was error.

Judgment reversed.

All the Justices concur.