Atlanta & West Point Railroad v. Wyly , 65 Ga. 120 ( 1880 )

Jackson, Justice.

Wyly sued the railroad company for damage to his dray and mules and recovered ; the company moved for a new trial, which was refused, and it excepted. The usual .grounds that the verdict is not sustained by evidence, and against law on that account, were abandoned before this court. A witness may testify to the speed at which the train is moving according to his judgment, giving the reasons for his opinion ; and it is for the jury to say how much weight such opinion is entitled to have. Therefore, a witness may give his opinion as to speed, based on the appearance, noise, etc., etc., of the train ; but this ground was abandoned also before us.

1. The court charged the jury that it is negligence not to toll bells on passing and moving trains through a city or town. Such is the law; and whilst, as a general rule, questions of negligence are for the jury, yet where the statute makes the act imperative on the agents of the company, and the rigid enforcement of it is of so much consequence to society, the court may tell the jury the law, and that the omission to comply with it, if it was omitted, is negligence in the agent who neglects to do it. This statute—Supplement to Code, §311—isa substitute for the former one in regard to blowing the whistle, so far as towns and cities are concerned, and this court has decided that such neglect to blow is negligence. 24 Ga., 75.

2. The other exceptions appear to us to amount to nothing in view of the entire charge. That seems to cover all the points, and to rule that if the accident occurred wholly by the drayman’s fault there could be no recovery ; if by the mixed fault of the drayman and the company’s agents, then there could be a recovery, but diminished in proportion to the drayman’s fault; if wholly by the fault or negligence of the company’s agents, then there could be recovery of full damages. This we understand to be the law.

Judgment affirmed.