Nashville, Chattanooga & Saint Louis Railway v. Peavler
68 S.E. 432
Ga.
1910
Check Treatment
Lumpkin, J.

At a certain point within the corporate limits of Borne the Southern Bailway crossed over the track of the Nashville, Chattanooga & St. Louis Bailway by means of a bridge. Peavler was a member of a bridge gang of the former company and was at work with others on the piers of the bridge beside the track of the latter railroad. A train of the former company passed over *620tile bridge. It was contended that it was dangerous to remain under it, and the hands stepped out to one side of it; that on account of the high embankments on each side and of water alongside the track, caused by a recent rain, they stood on the track of the other company; and that a train of such company, running at a high and reckless speed and in violation of a municipal ordinance on the subject, and without the exercise of due care on the part of the agents in charge of it, struck Pcavler and killed him. His widow sued for the homicide. She recovered a verdict. A new trial was refused, and the defendant excepted.

The general welfare clause of the charter of the City of Borne is expressed in broad and comprehensive language. Acts 1882-3, p. 430. Under such authority, in the exercise of its police power, a municipal corporation may pass a reasonable ordinance regulating the rate of speed at which cars propelled by steam may be run within the corporate limits. 3 Abbott, Mun. Corps. § 854; McQuillin, Mun. Ord. §§ 473, 474; Western & Atlantic R. Co. v. Young, 81 Ga. 397, 417 (7 S. E. 912, 12 Am. St. R. 320); Bluedorn v. Missouri Pacific Ry. Co., 108 Mo. 439 (18 S. W. 1103, 32 Am. St. R. 615); Prewitt v. Missouri, Kansas & Texas Ry. Co., 134 Mo. 615 (36 S. W. 667). The authority to pass such ordinances is not limited to places where a railroad track runs along or across a street, or over ground belonging to the municipality. Generally it has been held that the reasonableness of a municipal ordinance regulating the speed of trains is a question of law for the court to decide, unless it depends upon the existence of particular facts which are disputed. Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (7), 506 (16 S. E. 49). But it has been said that if an ordinance regulating the speed of trains embraces in its language the whole area of a city, and is reasonable in itself, the court may submit to the jury the question as to whether, on account of the special local conditions and surroundings, it would or would not reasonably apply to a particular locality just inside the city limits. Central Railroad Co. v. Brunswick & Western R. Co., 87 Ga. 386 (4), 391 (13 S. E. 520). The presiding judge seems to have had this decision in view in the present case, and no objection was made to his having left the question of reasonableness to the jury. The manner of doing so does not seem to have been harmful to the defendant.

*621The request to be allowed to -prove what was usually done by bridge gangs for the protection of approaching trains was properly denied. The approaching train was not injured; but a bridge hand of another company. .It did not appear how general any such custom was, or that he know of any such custom, or that it was his duty to do anything under it, or whether it applied to tlie employees of the company for which he worked or only to the bridge hands of the defendant company. Altogether the proof offered, as to some sort of custom touching tlie matter of what kind of notice was usually given to approaching trains when any obstruction was on the track, was properly rejected. In any event, a custom to put up “slow boards” or to send a man out to flag an approaching train, if the track was obstructed, could hardly have had much application to a case where a workman stepped upon the track momentarily to avoid danger from another train.

Some portions of the charge may perhaps have been subject to more or Jess criticism. The charge in regard to pedestrians was not exactly adjusted to the case growing out of the homicide of the plaintiff’s husband, who was not a pedestrian properly speaking, but a bridge workman merely stepping back on the track because of a train passing overhead. The court, in defining ordinary care, used the language of Civil Code, § 2898. While that section has more direct reference to care of property than care to avoid tlie consequences to the person arising from negligence, yet the underlying idea in both instances is what would every prudent man have done under the same or similar circumstances. In the light of the evidence and the entire charge, we do not think there should be a reversal. Judgment affirmed.

All Lite- Justices concur.