3 Ga. App. 266 | Ga. Ct. App. | 1907
The plaintiff, as the widow of Warren A. Mouchet, brought suit against the Southern Railway Company to recover damages for the homicide of her husband: In her petition she sets out the acts of alleged negligence on the part of the defendant, which caused her husband’s death, substantially as follows: The tracks of the defendant company run through the town of Bowers-ville, dividing the business portion of the town. The freight depot is on one side of the tracks, and the passenger depot with a telegraph office is on the other side. There are two streets running east and west, crossing the railroad tracks, — Benson street crossing on the north, and Schaefer street crossing on the south. Between these two streets, besides the main track, there are some side tracks of the defendant railroad and also tracks of the Hart-well Railroad Company, the intervening space being used by both railroad companies as a switch yard. In addition to these two street crossings, it is alleged, there is a pathway between the two street crossings, over the tracks of the defendant company, going from the business houses on one side of the tracks to the business houses on the other; that the public has used this path or footway continuously and uninterruptedly since the defendant has been operating the railroad; that the defendant, during this entire period, has left this pathway opened, and “permitted, invited, and licensed” the public to use said pathway to cross its tracks at this point; that on the day of the homicide petitioner’s husband, desiring to go from-one side of the town to the other, and it being necessary, in order to do so, to cross the defendant’s tracks, went first to the Schaefer-street crossing; that he found that crossing blocked by the cars of the defendant, arid, this blocking continuing for twenty minutes or longer, he got tired waiting for the street crossing to be opened, and, being in haste to get across, he went to said path or footway, and by this footway attempted to cross the side-track, where the defendant had left an opening between two cars, about six feet wide, to accommodate
The defendant demurred generally to the petition, because the facts alleged did not constitute actionable negligence, and because the allegations showed such negligence on the part of the deceased as would prevent a recovery. The demurrer was overruled, and the defendant excepted pendente lite. The defendant moved to strike from-the petition paragraph 11, which set up a town ordinance prohibiting, under a penalty, railroads from blocking street
1. The petition set out a cause of action, and there was no error in overruling the demurrer.
2. The judgment refusing to strike from the petition the paragraph setting up an ordinance of the town, prohibiting the blocking of street crossings by trains, was right. A violation of this ordinance by the defendant might be proper testimony to be considered by the jury in connection with other testimony as bearing upon the question of negligence. Western & Atlantic R. Co. v. Meigs, 74 Ga. 857.
3-4. The judgment overruling the motion for a nonsuit is immaterial, and we proceed to consider the merits of the case under the facts and the law applicable thereto. We are clearly of the opinion that the evidence does not legally warrant or support a recovery. There were two grounds of negligence alleged as the-basis for damages; the blocking of the street crossing for an unreasonable time, and in violation of the. town ordinance, whick made it necessary for plaintiff’s husband to seek the path or foot-way for the purpose of crossing the track; and the neglect of the company to have a watchman at the path or footway, or to keep a lookout at said footway, in order to warn pedestrians of any impending danger, as the company had “permitted, invited, and licensed” the public use of the path or footway. There is some evidence that Schaefer-street crossing; the one most convenient for the deceased to have used in crossing the tracks, was blocked with
The second allegation of negligence is that the path or footway which was used by the deceased in attempting to cross the track was used by the public b}r permission, invitation, and license of the railroad company, and the companjr, being charged with the knowledge that said path or footway was being constantly used by the public, was “in duty bound to place some one at said footway to warn pedestrians of the danger into which the deceased fell.” The evidence utterly fails to establish the existence of anjr path or footway leading across the tracks, and used by the public by the consent, express or implied, of the railroad company. The path or footway claimed to be used by the public was a footway about a foot and a half wide which led from Holbrook’s store to the edge or side of the railroad bed, and then along the bed of the track to the passenger depot. This footway did not go across the track, but to the track and then on the track to the depot and telegraph office. It was known as “Holbrook’s path,” and was largely made by him in going and coming to and from the telegraph office. The public did use the path in question to walk across the yard of
In Grady v. Georgia R. Co., 112 Ga. 668, it is held: “In a railroad yard in which there are several tracks in continuous use for the purpose of storing and switching cars and making up trains and the like, and where the dangerous character of the place is manifest and obvious, there can be no implied license to the public to cross the tracks either through open spaces' casually left between the cars, or under or over the cars. In order to render the company liable for injury caused to a person who was passing between two cars in such a yard, and whose presence and danger were unknown to the agents or employees of the company, there must be proof of an express license from the company.” See also Kendrick v. Seaboard Air Line Ry., 121 Ga. 775; Central R. Co. v. Rylee, 87 Ga. 491; 3 Elliott on Eailroads, §1258. Whether this principle is applicable, without limitation, to a yard of a railroad company in the middle of a town, where the tracks divide the business portion of the town, is not necessary to be considered. Under the undisputed facts of this case, the deceased, in attempting to •cross the defendant’s track by the footpath while the switching was in progress,, was a trespasser, and the company owed him no duty except the duty imposed upon it in reference to a trespasser, not to hurt him wilfully or negligently after he was discovered or his presence known. Rome Railroad Co. v. Tolbert, 85 Ga. 447; Hall v. W. & A. R. Co., 123 Ga. 213. The uncontroverted facts show, and it is clearly indicated by a diagram proved to be a correct representation of the place of the homicide, that the deceased was not killed while attempting to cross the track by the path or footway. He was caught between the drawheads of two ears and killed 12 feet and 6 inches south of the point where that path led up to the railroad track. The case therefore, as presented by the material and undisputed evidence, and stripped of every •extraneous or immaterial circumstance, is simply this: The deceased wanted to cross the track of a-railroad in its switch yard. He -did not attempt to cross at the public or usual place of crossing, hut attempted to cross between two ears at a casual opening about six feet wide, and while switching was in actual progress. Up. w.as caught between the drawheads of the cars and killed. Tt
There is no merit in the several exceptions to the admission of testimony, and to the extracts from the charge. The judgment of the court in refusing a new trial is reversed, on the ground that the verdict is wholly without any evidence to support it, and,, therefore, contrary to law. Judgment reversed.