One witness testified: He was on the engine when it struck plaintiff and Jones. When they were struck he was sitting on the fireman’s side, and the fireman was in the gangway stirring up his fire or doing something, and did not see them struck. Witness saw them about 75 yards before they were struck, but nobody did anything to stop the engine. He just holloed, “Lord, yonder is two men!” and by that time the engine had hit them and gone by. The engine was running at the rate of 25 or 35 miles an hour. No bell was rung nor whistle blown, nor any alarm given. The engineer reached for his whistle, but by the time he reached it they had been struck. The train was about four hours late, and no signal was given as the Emma street crossing was neared, or between that crossing and the next, although between these crossings there was a blow-post. The engineer did not check or keep checking the engine before reaching either of the crossings. To take the numbers of the cars on the storage track one would have to stand on the main line of the Georgia Pacific. Witness saw the light which plaintiff had, and any one who looked from the engine could have seen it. If the train had been going 12 miles an hour, it could have been stopped in 100 feet; if 6 miles an hour, in 30 feet. "When witness first saw plaintiff and Jones, they were standing in the middle of the track sidewise to the engine, looking up on the cars, and appeared to be writing. Employees are accustomed to use that track at night. Railroad men were allowed to go through the Georgia Pacific yard at any time of night, etc. Another witness testified that the train was running 25 or 35 miles an hour, and no signal was given; that it is customary to take down the numbers of the cars on the south side, because they are marked on that side, and in taking those numbers one cannot well stand between the Georgia Pacific and the storage track of the "W. & A., as it is so close one would have to look straight up, and the lantern would not give sufficient light, and if he got on the other side of the main line the light would be too dim, and so he would have to stand on the Georgia Pacific main line; that the W. & A. freight-train was making a “heap of fuss”; a train heavily loaded coming up grade makes a terrible racket; that if one were right by a train coming up grade it would cut him off from hearing a train going down grade (defendant’s train was going down grade); that at the place where plaintiff' was struck a number of' employees were in the habit of going up and down the track to and from their work at night; that at that point one standing in the middle of the Georgia Pacific track and looking towards the city, could see about one hundred yards down the track, and could see an engine headlight further than 100 yards ; that it does not necessarily require two men to take the numbers of the cars, but at night it is more convenient, for one man can hold the light and the other go along taking numbers. The assistant superintendent of the "W. & A. railroad testified : The greater portion of the Georgia Pacific track in Atlanta was laid within the marks or boundaries of the W. & A. railroad, that portion between Bellwood crossing and Emma street varying from three to five feet. Where plaintiff was hurt the Georgia Pacific track was on the regular right of way of the W. & A. railroad. It was a common practice of the two roads to go on each other’s tracks to hunt for cars or to get numbers, particularly the main line where they were generally open. The side-tracks at that time of the year were badly crowded with cars. It was the common practice to walk down the tracks to get the numbers of the cars, and almost absolutely necessary to walk on some other track besides those the cars were on. It was the practice all the time of both roads. As assistant superintendent witness knew that-the practice existed, and did it time and again himself, and the Georgia Pacific people knew of it. The Georgia Pacific yardmaster, Turner, who managed the handling of cars, knew of it; witness had seen him down there very often; the local agent of the Georgia Pacific, who had charge of the tracks and their use in handling the train, did not go down these tracks, but saw “us” down there very often, and witness had met him there and talked about the condition of affairs there, and in regard to usiug each other’s tracks. There was a practice for the roads to use the tracks of each other for storing ears where there were vacant spaces, but these transactions generally took place nearer the city and not at Emma street, Bellwood or beyond. At the point of this accident there was no transaction of business, and witness in his testimony was talking about Simpson street, which was about 1,500 yards away. It was a common practice for the employees of one road to go on to the track of the other to transact business, for the reason that the main line was generally pretty clear of cars. In the night-time an employee with a good lantern, if on the other side of the Georgia Pacific track, could read the numbers of the ears, looking across the main line of the Georgia Pacific. The duty imposed upon watchmen by the W. & A. was to take the numbers of cars, and they were expected to look at each car and to examine the seals. Examining the seals at night involved the going up to the door, and they would have to take a lantern and go to the car-door to get the seal, the number of the seal and its condition, and in getting the seal the watchman was expected to take the number of the cars; this was to see that the car was not broken open when received. A seal is made of lead about the size of a nickel, and impressed with the number and initial of the road sealing it. It is not possible at night to get this number without getting right up to it. It would be necessary for the watchman to walk down immediately next to the cars and take seal after seal as he went along, and examine it. He could not walk upon the main line of the Georgia Pacific and do that. If a freight-train of the W. & A. were coming into town at the speed usually run by freight-trains on the W. & A. at that point, and the Georgia Pacific was coming out at 25 or 30 miles an hour, and the W. & A. were abreast of the watchman, he would hardly hear the Geoi’gia Pacific train. If the W. & A. train was approaching from the opposite side he could not hear the Georgia Pacific train a very great distance, probably a few hundred yards. Assuming the man to be watching and his attention attracted to the train, he could hear it a few hundred yards. If the man who was trying to see the numbers had just an ordinary lamp furnished by the railroad for that purpose, and it was a rainy, dark night, witness thought he could stand across the Georgia Pacific track and read the numbers. So far as he knew, all employees are furnished with good lamps and good materials and are required to keep their lamps in good condition. The distance one could see the number of a car depends upon the distinctness with which it was written on the car, and as a general thing they are distinct, though sometimes defaced, etc. A yard-master for the W. & A. railroad testified: He had never heard of any order’s against the employees of either of the roads walking on the track of either, passing among the tracks. The watchman in that portion of the road would take the number of the loaded cars between Emma street and Bellwood. He did not take the seals but could tell whether the car was secure or not, examining it, and if the door was open, would report it. With ears standing on the track next to the Georgia Pacific main line at night, a man could not get the number if he just had an ordinary lamp, such as were furnished W. & A. watchmen, without holding the lamp so he could see the number. He would have to get back a reasonable distance so that the light would shine on it, and he could stand between the tracks in some places but in others he could not. He would generally get on the main line of the Georgia Pacific, on the end of the ties, so that he could see the numbers, and witness did not think he could stand .across the Georgia Pacific main line and see the numbers on a dark night. It would have to be a very good lamp. Turner, the yard-master of the Georgia Pacific at that time, sometimes walked on the tracks with witness and they saw other employees walking on the tracks. The yard-master of the Georgia Pacific was in that part of the yard and saw the W. & A. men using the tracks; it occurred often, and no objection was made. The night yard-master of the W. & A. railroad, who had held that position for 18 or 19 years, testified, that at night with a good light and bright numbers one could stand across the Georgia Pacific main line and take the number, but with the ordinary run of numbers could not, and could not stand between the tracks and take them; that the way witness had always done was to stay on the’main track, because it threw him on a level with them and he could see them better; that the employees walked on “ each other’s road, the same as if we were out in a big road, and feel that we have a right to ”; that this had been the practice witness could not tell how long, ever since the railroad was built, he guessed; that it was necessary for employees to get on “ each other’s tracks ” to take the numbers of the cars, and they paid no attention to being on another’s territory; that that practice had been in existence ever since the railroad was built, witness guessed; that it was not the duty of the watchman to take the numbers of the seals, but he had to see that they were all right and unbroken, and at 10 or 11 o’clock at night for a watchman with his lamp to see whether one was broken he would have to get close to it; that it was his duty to keep the lamp in order, etc.; that it had been the habit down there for watchmen of the W. & A. road to use the Georgia Pacific track in taking numbers of cars and things of that sort, ever since they had been there as watchmen, that is, for four or five years. There was much other evidence, not varying materially in effect from that stated above; also, evidence as to the nature of the injuries inflicted; also, an ordinance of the city of Atlanta, forbidding the running of trains within the city limits at a greater rate of speed than six miles an hour, under penalty of fine or imprisonment or both. It was admitted by defendant that it is and was at the time of the injury operating the Georgia Pacific railroad under a lease.Glenn & Slaton, for plaintiff’.Henry Jackson and Emmett Womack, for defendant.
