1. It is entirety proper and in conformity with good pleading to charge in one count that the defendant violated the penal statute in running six freight-trains through the county on the same Sunday. While, .strictly speaking, the running of each train may have been a violation of the law, yet we think the running on the same day of six trains might well have been treated as but. one offense. Certainty this did not embarrass the defendant in making his defense or deprive him of any right. In fact this-method of pleading could not be otherwise than beneficial to the defendant. Wingard v. State, 13 Ga. 396; Walker v. State, 118 Ga. 772 (45 S. E. 621); Jackson v. State, 76 Ga. 551 (7); Young v. State, ante, 827 (62 S. E. 558).
2. The superintendent of transportation, having charge of the-business of the transportation department of that portion of the Southern Eailway Company over which the freight-trains were alleged to have been run in violation of the statute, was the proper-person to be indicted. Where a railroad system runs through several States, has separate divisions, and has a separate superintendent of transportation for each division, we think the superintendent of transportation of the division in which the law is-claimed to have been violated is the proper officer to be indicted,, under the terms of the statute (Penal Code, §420). The court, in considering a demurrer on this ground, could judicially recognize that the Southern Eailway Company was such a system; and the demurrer admits that the defendant was its superintendent-of transportation having charge of the business pf transportation, of that portion or division of its road over which the freight-trains were alleged to have run in violation of the law, on the day specified in the indictment. The section of the code defining this, offense designates, as the officer to be indicted, the one who is-primarily responsible for the running of freight-trains; and it-can not be doubted that the superintendent of transportation of *839the division embracing that part of the railroad where the alleged violation of law occurred fits the designation made by the statute. Vaughan v. State, 116 Ga. 841 (43 S. E. 249).
3. The charge of the court complained of in the first ground' of the amended motion for a new trial was error. If a freight-train leaves its starting point upon a practicable schedule which would bring it to its destination before eight o’clock on Sunday morning, of course the justification provided by the statute for the running of a train up to eight o’clock Sunday morning would be complete. The preamble to this act of the legislature shows, that the intention was to allow a train running on such schedule, as above stated, when unavoidably detained or delayed by acci-. dents or other circumstances, to continue running to its destina-tion, although to do so might require the running of the train on Sunday morning after eight o’clock. In other words, a complete defense is established when the evidence shows that the freight-train left its initial point within the time provided by the statute, and on a schedule that was practicable and could reasonably be complied with, and in the particular instance was prevented from being run according to schedule and within the time provided by the statute, because of unavoidable delays not due to bad faith of those who had charge of the movement of the train in question. The charge complained of instructed the jury that they could find.the defendant guilty if it appeared, from the evidence, that the train ran after eight o’clock on Sunday morning, regardless of the time of departure from its starting point, and regardless of all unavoidable delays that may have prevented the train from making its regular schedule, although in other respects it had fully conformed to the requirements of the statute. See Acts of 1874, p. 97; Brand v. State, 3 Ga. App. 628 (60 S. E. 339).
4. The charge complained of in the third ground of the amended motion for a new trial was, in our opinion, erroneous, for both the reasons stated. It was not adjusted to the evidence, because there was no evidence whatever that the regular schedules on which the trains started from their initial points were annulled by the superintendent of transportation^ or by any officer who had charge of the business of that department, of the railroad. The evidence was that the delay' of over twelve hours at Waco of *840the trains in question temporarily displaced the regular schedules and made it necessary for the trains not to leave Waco except under special orders. But the fact that such delay, under the rules of the company, amounted to a temporary displacement of the regular schedule, and the substitution therefor of an extra schedule, adjusted to the situation, made necessary by such delay, did not amount to an annulment by the superintendent of transportation of the regular schedule. If the freight-trains in question started from their initial points on a schedule which was practicable, and which could be reasonably run within the terms of the statute, and were unavoidably delayed in making such schedule, they would have the right to rim to their destination, regardless of the length of such unavoidable delays. The fact that, according to railroad technicalities, the regular schedule was “killed” by delays lasting longer than twelve hours, and that the freight-trains, after such unavoidable delays, started under new orders, does not affect in any manner the question. Of course a freight-train can not start from its initial point on Sunday, but if it starts from its initial point before Sunday, and on a schedule which gives it ample time to reach its destination in this State before eight o’clock Sunday morning, it has a right to do so; and if, after starting from its initial point before Sunday, it meets with unavoidable delay, and is thus prevented from making its regular schedule on which it started, it nevertheless has a right to continue its run to its destination after eight o’clock Sunday morning; and any delaj^s that are unavoidable and not caused by bad faith of the officers of the company having charge of the movements of such trains, whatever may be the length of such delays, do not destroy this right. The court, in the charge excepted to, considered the start from Waco after the delays as a start from the initial point, and that a start made on Sunday constituted a violation of the statute. We think this construction of the law was, for the reasons stated, erroneous.
5. We have examined the evidence in this case very carefully, and we have concluded that it fails to show any violation of the statute in question. There is no dispute that the schedules upon which these trains started from their initial points gave them ample time to reach their destination within the limitations of the law. There is no dispute that the trains were delayed at *841"Waco by a failure to get water at that point, which was the customary place for getting water, or that those in charge of the movements of the trains did not know that the water could not be obtained at this regular place, until the trains reached there. It may be that the employee of the company at Waco whose duty it was to keep the tank supplied with water could have notified the officers in charge of the movements of the trains that the water could not be procured at Waco; but this he did not do, ■and the trains went to Waco, the employees in charge of them reasonably relying upon the fact that at that point they would be able to get water. Under all- the circumstances of this case we think the delay was unavoidable, and was not caused by bad faith •of the defendant or of- those who - were in charge of the running of the trains, so as to render the defendant amenable to the penal statute, and that the verdict in this case is without any ■evidence to support it, and should be set aside as contrary to law.
Judgment reversed.
AI-generated responses must be verified and are not legal advice.
