Port Royal & Western Carolina Railway Co. v. Phinizy, 83 Ga. 192

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83 Ga. 192 | Ga. | 1889

Bleckley, Chief Justice.

A mule was killed by the railway company within the corporate limits of Augusta, but some three miles distant from the central portion of the city. The scene of the occurrence was upon territory added by a late amendment to the city charter. The animal was killed upon a trestle, between the blow-post and a public crossing, probably 150 yards from the crossing.

1. It is objected that the court gave in charge to the jury sections 708 and 710 of the code.. According to the principle ruled in Western & Atlantic Railroad v. Jones, 65 Ga. 631, there was no error in this part of the charge. The two sections are to be taken together. If they are pertinent when stock are beyond the crossing, we can see no reason why they are not so when the stock are oh the hither side of the crossing. The sections, and the conduct of the company’s employés under them, are simply for consideration by the jury. Their importance is nothing like the same when the injury occurs at a distance from the public crossing, as when it occurs upon the crossing. .Still, they have, some relevancy in either case.

2. But we think the court erred in deciding as mat*196ter of law, that it was negligent to blow the stock-alarm whistle. Section 710, as modified by the act of 1876, contains no express inhibition upon blowing the whistle within’ the corporate limits of a town or city. Binging the bell is substituted for whistling, as to all matters of notice or warning in approaching public crossings; but in this instance, the blowing of the stock-alarm had no relation to the crossing, but was aimed alone at the mule, and was prompted by the emergency. We can see no reason why, in case of a sudden emergency, the whistle may not be sounded, even in the very centre of a town or city, when such measure is requisite to save the life of man or beast, and we are sure that the statute never contemplated any inhibition upon such use of the whistle where danger occurs in the woods or fields adjacent to the populated quarters of a city. The merits of the present case on the facts in evidence are so close that we think the erroneous charge to the j ury may have done mischief, and therefore that a new trial should be granted.

Judgment reversed.