3 Ga. App. 548 | Ga. Ct. App. | 1908
Tankersley brought suit in the city court of Hall county against the Southern Railway Company, for damages resulting from personal injuries. The jury found a verdict in his favor for $1,000, and the defendant’s motion for a new trial was overruled. The petition, in substance, alleges, that on the day of the injury the plaintiff and his two children were approaching a public crossing in the city of Gainesville, in a one-horse wagon drawn bjr a mule; that while they were crossing the track, the defendant’s train suddenly and without warning ran upon him, frightened the mule he was driving, and caused the mule to dash off down the railroad track in front of the train; that the-wagon in .which he was riding was overturned, and- that he was thrown with great violence on the ground and was seriously and permanently injured. He alleges that the defendant was negligent in that its train approached said crossing without any ring
1. Counsel for the plaintiff in error contend that the evidence shows beyond question that the plaintiff was not injured, this contention being based upon the testimony of several physicians who examined him immediately after the injury, and who testified that they did not discover that he wras injured. In reply it need only be said that the plaintiff himself swore to the jury that he was injured, describing the character and extent of his injuries and the extent of his suffering. This testimony of the plaintiff was believed by the jury. They had the right to believe it notwithstanding the adverse testimony of the physicians. The plaintiff knew whether he was hurt and whether he suffered, and, if entitled to credit, his knowledge would and ought to have outweighed the opinion of “a whole college of physicians.” It may be added that there is other evidence in the record which corroborated the
2. It is insisted in tire next place that under the plaintiff's own evidence the verdict in his favor was unauthorized. This contention is based upon the following statement made bjr him in his cross-examination: '“I knew there was a crossing there- and that trains ran on that road. I knew they ran fast and one was liable to be coming. I knew there was a rise on my right as. I came up; that there was an embankment. If I was close up to the crossing and had stopped my mule, I could have seen the train coming one half mile. I did not go on the crossing. Eight at the track I could have seen it a half mile.” It is insisted that this testimony shows that the plaintiff could have discovered the-train had he tried; in other words, had he used his senses of sight or hearing, he could have discovered the train, and, failing to do this, he took the consequences of going on to the crossing, and can not recover. It is not the law in this State that a mere failure to stop, look, and listen, by one who is about to cross a railroad track at, a public crossing, constitutes such negligence as will prevent a recovery. Whether an ordinarily prudent person would attempt to cross a railroad track without using his sense of sight or hearing is a question of fact, to be determined by the jury in each particular case. Western & Atlantic R. Co. v. Ferguson, 113 Ga. 711 (39 S. E. 306, 54 L. R. A. 802), and cases cited; 2 Amer. & Eng. Ene. Law (2d ed.), 427 et seq. But-even if a person in a particular case was negligent, under the circumstances, in not stopping and using his sense of sight or hearing before attempting to cross a track at a railroad crossing, his failure to do so would not necessarily prevent a recovery; for if the evidence, in addition to showing his negligence, showed that the railroad company was negligent in approaching the crossing without giving the signals or slacking the speed as required by law, a recovery might be had, the damages to be diminished according to the negligence attributable to each. Civil Code, §3830. In this case, however, the plaintiff testifies that in approaching; the crossing, while he did not stop, ha did look and listen, to find out if any train was approaching the crossing.
3. Plaintiff in error contends that there could have been no
4. We can find no merit in the exception based on the suggestion that the negligent running of the train in approaching the crossing was not the proximate cause of the injury, but that the proximate cause was the frightened and unruly mule; nor in the kindred exception, that the court erred in giving in charge §2321 of the Civil Code, because the evidence shows that if the plaintiff was injured at all, it was not by the running of ears, but by the running of the mule. A great deal • of metaphysical nicety has been indulged in by text-writers and by courts on the subject, of proximate cause, but it has never been doubted that where, one’s horse attached to a vehicle becomes frightened, at or near a public crossing, by the negligent running of the train in approaching the crossing, and from fright runs away, and either throws the occupant out of the vehicle or carises him to jump out, the consequent injury is proximately caused by the negligent running
There was no error of law committed by the trial court, and the verdict is warranted by the evidence. Judgment affirm,ed.