Hambright v. Western & Atlantic Railroad , 112 Ga. 36 ( 1900 )

Lewis, J.

1. The affirmative and positive testimony of witnesses as to the actual facts of a particular occurrence can not be overcome by testimony which is negative in character, or consists of mere opinions.

2. As to a trespasser walking upon the track of a railroad, the duty of observing ordinary care and diligence for his protection does not devolve upon the company’s servants in charge of a train until his presence upon the track becomes known to them. Atlanta Ry. Co. v. Leach, 91 Ga. 419; Atlanta Ry. Co. v. Gravitt, 93 Ga. 369.

3. Applying the above rules to the evidence in the present case, it is manifest that the plaintiff was not entitled to a recovery, and the court, therefore, did not err in directing a verdict for the defendant.

Judgment affirmed.

All the Justices concurring.

Action for damages. Before Judge Fite. Catoosa superior court. February term, 1900.

Seaborn Wright, W. H. Odell, and Shumate & Maddox, for plaintiff. Payne & Tye and R. J. & J. McCamy, for defendant.