Richmond & Danville Railroad v. Johnston , 89 Ga. 560 ( 1892 )

Gober, Judge.

The mother, the plaintiff below, brought suit for the death of her mi nor son. She alleges that he was killed by defendant’s railroad train at a crossing near the city limits of Atlanta. The facts are set forth in the official report. She had a verdict below, and the defendant, on the refusal of a new trial, brings the case here.

It is not insisted from this evidence that the defendant below complied with the law. The train was run across the crossing at the rate of from twenty to thirty miles an hour, with the engine pushing some freight-cars in front. For the plaintiff’s right to recover upon the facts presented, see 24 Ga. 79; 65 Ga. 120; 85 Ga. 525.

It is insisted that the verdict is contrary to law under the ruling in the Clay case, 84 Ga. 345. Since that case, the act of 1887 has been considered by this court in 86 Ga. 236. Measured by the rule there laid down, the mother, under the evidence in the record, had a right to recover, and, upon this point, the verdict is not contrary to law and the evidence.

Judge Simmons, in 85 Ga. 525, says: “The evidence clearly shows that the defendant was negligent in running its cars at a high rate of speed within the town of LaGrange, and over the public crossings, and in not checking the speed thereof so as to stop in time should any person or tiling be crossing said track on said road.” The rule there laid down is, that the only defence the company could make in such ease was, to show that the injury was done by the consent of the injured party, or that he could have avoided it by the exercise of ordinary care, or, in mitigation of damages, that he contributed to the injury.

Judge Bleckley, for the court, says in 79 Ga. p. 51: “Failure of the injured party in the use of ordinary care, by untimely steppiug upon a railroad track at a public crossing, is no complete bar to the recovery of damages, unless, by the use of ordinary care, the consequences due to the negligence of the other party could have been avoided. . . And whether they could or not is a question for the jury.” On page 53, same case, he says : “ The precise thing which every man is bound to do before steppiug upon a railroad track, is that which every prudent man would do under similar circumstances. If ‘prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means. The court cannot instruct the jury what a prudent man would do, for, in a legal contemplation, the jury know it better than the court.”

We conclude that this case was a question for the jury. There is such a finding as the jury had a right to make from the evidence, under the law. There is no meritorious complaint of any error of law. The trial judge having approved the verdict, the Judgment is affirmed.