130 Ga. 83 | Ga. | 1908
In her suit against the Seaboard Air-Line Bail-way Mrs. Josephine Snowball claimed damages for the alleged wrongful death of her husband, caused by the negligent operation of the defendant’s locomotive and train. It was alleged that the homicide occurred in the State of Florida; and the Florida statutes as to the right of the plaintiff to maintain the action, and the pre
Hnder this evidence can the court say as a matter of law that the defendant company had measured up to its full legal duty? In the first place, this employee was not on duty at the time of his death; and not engaged in the operation of the train which is alleged to have killed him. Belatively to the railroad company he stands upon the same footing as a member of the public. S., F. & W. Ry. Co. v. Flannagan, 82 Ga. 580 (9 S. E. 471, 4 Am. St. R. 483). The evidence affords an inference that the plaintiff’s husband was killed on the public-road crossing. If he was on the road crossing, and while there was killed by the train, he was not a trespasser. Williams v. Southern Ry. Co., 126 Ga. 710 (55 S. E. 948). If these facts were found by the jury (and there was evidence to warrant such conclusions), the railroad company owed the plaintiff’s husband the duty to observe ordinary care in-discovering his presence on the public-road crossing, and in protecting him against injury from the passing train. On the other hand he was bound to exercise reasonable prudence in protecting himself from collision with the train. Less than an hour before the passenger-train passed over his body the deceased was seen within 250 yards of the crossing. He was not drinking and appeared sober. The evidence does not indicate his position, whether standing or prostrate on the track, when his body was struck by the train, unless we infer he was lying down from the engineer’s statement that he saw some
Judgment reversed.