Central Railroad & Banking Co. v. Denson , 84 Ga. 774 ( 1890 )

Blandford, Justice.

Martha Denson alleged that the Central Railroad and Banking Company killed her husband, Jackson Denson, by the careless running of its trains, without any fault or negligence on his part; that he was killed by the «gross negligence of the agents of said company, and that the same could have been avoided by ordinary care and diligence on their part; and that he was run over without any attempt on their part to avoid it. She had a verdict in her favor. The railroad company moved for a new trial on several grounds, and the refusal to grant a new trial is alleged as error. The evidence in the case shows that Jackson Denson, the deceased, was afflicted with deafness, in fact was very deaf, although he could hear to some extent; that he went on the track of the railroad company about five o’clock in the morning ; a train was coming behind him, hut he continued to walk steadily forward. There was no warning given of the approach of the train, no blowing of the whistle or ringing of the bell, and no attempt was made to check the train until it was within a few feet of the deceased, when the whistle was blown twice. About the same time the train collided with the deceased, and he was immediately killed. - ■

The code, §2972, declares: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained. ” The question here is, what does “the defendant’s negligence” mean ? Is it not apparent that it is the opposite of the ordinary care required of the plaintiff, and the want of reasonable and ordinary care required of defendant— such neglect as amounts to gross, wilful and culpable neglect? We are of the opinion that the word negligence as used in this section of the code does not mean gross negligence, wilful and culpable negligence; but in this case we are of the opinion that the defendant was guilty of gross, wilful and culpable negligence, from the evidence submitted. There was not even an effort on the part of the railroad company in the court below to show that any steps were taken to save this man’s life when it became apparent to the company’s servants that his life was in great peril and jeopardy. It appears to us that this negligence on the part of the plaintiff in error was a wanton act, showing an utter disregard for human life. It is manifest that an individual who would commit a homicide under such circumstances would be guilty of the crime of murder. One of the objects of government is to protect individuals in the enjoyment of life and limb (Constitution, art. 1, sec. 1, par. 8, 4, Code, §4995); and surely it cannot be said that a corporation or artificial person' can be licensed to wholly disregard human life. The negligence of the plaintiff’ will not bar a recovery where it affirmatively appears that the negligence of the defendant is so gross as to lead to the conclusion that the same is wilful and culpable. To this effect are many decisions of the courts of England and this country. In Rorer on Railroads it is laid down as the law that “ At places other than crossings or in public highways, a railroad track is the private property of the company, and no one other than the company’s servants or employés, in the necessary discharge of duties there, have any right to be thereon ; and moi’e especially so as to their using the same as a thoroughfare or pathway on which to walk or traveland though the company may not wantonly injure pfersons thus intruding upon and using the same, yet if the person be an adult, not known to those in charge of the train to be deficient in discretion, or in physical ability to-take care of himself, or not known to be deficient in his faculty of hearing, and not in any way presenting indications of being disabled or incapable of taking care for his safety, then the persons in charge of the train have a right to conclude and to act on that conclusion that such person is in possession of all his proper faculties to enable him to do so, and will leave the track in time to save himself from injury, and are not bound to stop or check up the train on his account; but as a matter of ordinary prudence and care, it is their duty to sound the whistle and ring the bell as a warning of the approaching danger.” 2 Rorer Railroads, 1122; Finlayson v. C. B. & Q. R. Co., 1 Dill. C. C. R. 579. See also Shearman & Redfield on Neg. §§480-482.

In the case of Baumeister v. Grand Rapids & I. R. Co., 30 N. W. Rep. 337, the Supreme Court of Michigan say that “if the deceased had stood still and faced the train as it approached him, it would furnish no excuse to the defendant for running its engine over him and killing him. If the engineer saw he did not intend to get ofi the track, and there was time enough to stop the train, contributory negligence cannot be relied upon in such a case. Neither can it in any case where the action of the defendant is wanton, wilful or reckless in the premises, and injury ensues as the result.” And many authorities are' cited in support of this proposition, among them 2 Thomp. Neg. 1160; Cooley Torts, 674; Beach Contrib. Neg. 29, etc. In the case cited warning was given, but as it appeared that the servants of the company had time to stop the train to prevent the accident, it was held that the plaintifi was entitled to reeovér. In the present case it appears that it was daylight when the train approached the deceased, and that the company’s servants could have seen him for 400 yards before they reached him. Yet when they discovered he was walking on the track, they gave no note of warning. Such conduct cannot be held to be anything else than wanton and wilful negligence.

In Pennsylvania Co. v. Sinclair, 62 Ind. 301, it was decided that “where an intent, either actual or constructive, to commit an injury, exists at the time of its commission, such injury ceases to be a merely negligent act, and becomes one of violence or aggression. Contributory negligence is a complete defence to an action for damages for a merely negligent injury.” But where the injury complained of is in terms or substance wilfully committed, then contributory negligence ceases to be a defence. We think this is a proper statement of the law.

So we conclude that notwithstanding the party injured might, by the use of ordinary care, have avoided the consequences of the defendant’s negligence to himself, yet where that negligence is so gross as to amount to wanton aud wilful negligence, the want of ordinary care on his pai’t to avoid the consequences of the defendant’s negligence would be no bar to a recovery for the injury so received.

We have examined the assignments of error as to the instructions of the court to the jury, etc., and we do not think, under the view we take of the case, that the court committed any material error.

Judgment affirmed.