132 Ga. 350 | Ga. | 1909
Anton Motz brought suit against the Central of Geor;gia Railway Company, to recover damages for the homicide of his ;son Horace, alleging that the deceased had been killed in consequence of the negligent operation of a train by the agents and employees of the defendant company, and that at the time of his •death the deceased was in the exercise of all due and reasonable care. 'This ease was before the Supreme Court at a previous term, and is to be found reported in the 130 Ga. 414 (61 S. E. 1). A complete statement of the facts, as alleged in the petition, is there to be found. In the decision in that case it was held that the court below erred in dismissing plaintiff’s case upon demurrer. The cause, having been remanded, again came on for trial, and resulted in a nonsuit, and the plaintiff excepted. It is unnecessary to restate, in full, the allegations of the petition here, as they may be •seen upon reference to the report of the case in the 130 Ga.
After a careful examination of the evidence in this record, we •are of the opinion that the court below did not err in granting the judgment of nonsuit. The evidence for the plaintiff failed completely to establish the essential allegations of the petition; and, beyond the proof of' circumstances from which the jury might have inferred that the deceased met his death by being struck by the engine or ears of the defendant Compaq, there is no proof to support the material allegations of the petition. The petition alleges that the deceased stood on a public crossing, which was blocked by one of the defendant’s trains, but the evidence shows that when ■struck the deceased was about opposite the depot, 75 or 100 feet from the crossing, There is no evidence that the crossing was a public-road crossing. One witness referred to it as a “dirt-road crossing,” and said, “It is open to the public.” Another witness for