127 Ga. 161 | Ga. | 1906
This was an action brought by a grandmother for the loss of services of a grandchild in consequence of the homicide of such child by a railway company. The petition alleges that the parents of the child are dead, and that during' their lifetime the mother gave the child to the grandmother, and that the father assented to this. While there appears in the record a demurrer to the petition, there is no cross-bill complaining of any ruling on this demurrer, and it is not for us, at this time, to determine whether the case is well laid so far as the right of the grandmother to recover is concerned. The only question involved in a motion for nonsuit is whether the evidence proves the ease as laid. The case proceeds upon the theory that the grandmother is entitled to recover for the loss of services of the child which would have been rendered during his minority, just as if the action had been brought by a parent.
The deceased was a boy 13 years of age, and was killed by a train of the defendant at a public crossing, the train being run at the time in violation of the blow-post law. There was thus not only a presumption of negligence against the railroad, but direct proof of negligence. The defendant would be liable, unless it is relieved under the rule that the plaintiff can not recover for Ihe reason that the deceased was not in the exercise of ordinary care and diligence for his protection after the negligence of the defendant became apparent. It appears from the testimony of an eye-witness that the deceased was running towards the crossing in a diagonal direction, and, when he reached a point 8 or 10 feet from .the crossing,
Judgment reversed.