Georgia Railroad & Banking Co. v. Clary , 1898 Ga. LEXIS 217 ( 1898 )

Simmons, C. J.

The charge set out in the headnote is clearly erroneous when taken in connection with the facts disclosed in the record. Relatively to a person or thing on a railroad-track, one hundred and thirty-five yards beyond the crossing, it is not negligence per se for the servant of the railroad company to .fail to check the train and blow the whistle before arriving at the crossing. Air-Line R. Co. v. Gravitt, 93 Ga. 369; Central R. Co. v. Golden, Ibid. 510. A failure to check the train and to blow the whistle is admissible in evidence and may be considered by the jury, as was held in both of the cases just cited. When, therefore, the trial judge instructed the jury that, if the servants of the company failed to check and blow, it was a lack of diligence, such charge was equivalent to instructing them that such failure on the part of the servants of the company would be negligence. In this State negligence is a question for the jury only, and the judge can not, except in certain cases, tell the jury that such and such acts constitute negligence. If in the present case the horse had been killed upon the crossing, the trial judge could have instructed the-jury that the failure to blow the whistle and check the train was negligence per se; for the statute requires that these things be done in approaching a crossing, and a failure to do so is made a penal offense. But where the horse was killed one hundred and thirty-five yards beyond the crossing, relatively to it or its owner, it was not negligence per se to fail to blow and check. In the case of West End & Atlanta St. R. Co. v. Mozely, 79 Ga. 463, the court charged the jury that “If the plaintiff rang the bell as a signal to the driver to stop, and the car stopped, and the plaintiff, without fault on his part, was in the act of alighting, and before he left the car . . the car suddenly started forward at the will of the driver, and the plaintiff was, by reason of the start or jerk, thrown to the ground and injured, the defendant would be liable.” This court held that “Such a charge was equivalent to instructing the jury that the facts recited would show the defendant to he negligent. Whether or not the defendant was negligent was a question for the.jury.”

The horse not being on the crossing at the time it was killed, although it may have started from the crossing down the track, the trial judge should have instructed the jury that they might take the failure to blow the whistle and check the train into consideration in determining whether there was, on the part of the company, any act of negligence which would make it liable. See cases cited supra.

Judgment reversed.

All the Justices concurring.