
    Carey v. East Tenn., Va. & Ga. Railway Co.
    Simmons, C. J. — The plaintiff’s evidence, if true, showing facts from which, in the absence of any explanation on the part of the defendant, the jury might have inferred negligence on its part, the case should have been submitted to the juiy. Accordingly, it was error to grant a nonsuit.
    January 14, 1895.
    Action for damages. Before Judge Westmoreland. City court of Atlanta. May term, 1894.
    The suit was for the homicide of Carey; and a non-suit was granted. He was, and had been for five years, in the' employment of the railway company, his duty being to wipe off trucks, clean cars, brush out, and put on coal. In the place where he stayed he kept buckets, scuttles and brooms. About midnight he was released from duty and told he might go home. Tie picked up a scuttle and his overcoat, and started to go across the tracks in the company’s yard toward the depot, for the purpose (as maybe inferred) of depositing.the scuttle there, as he usually did. To reach the depot it was necessary to cross the tracks. He would then have gone southward to reach his home. While he was on one of the tracks he was run over and killed by a long “circus Car” which was being pushed from the north by a switch-engine. It was dark and had been raining. In violation of a rule of the company, no bell was being rung. •This rule also required the use of lamps for signals; and it seems doubtful from the record, whether any light was on the car, and if so, whether it had been so placed that it could have been seen from the south, there being testimony tending both ways. The car was constructed so like a passenger-coach or sleeping-car that it made little or no noise in moving. The track was somewhat •curved going northward. There was a street-crossing with an electric lamp about 100 yards to the south. One witness testified: Erom where Oarey was lying on the track, one could look up the railroad for two or three hundred yards. There was no obstruction there to keep him from seeing it. If there had been lights he could have seen. I do not know whether he could have heard it. I did not see nor hear it. It passed within 15 or 16 feet of where I was. I probably could have heard it had I been listening. I was not on the track. — Another, who was on the car, testified: Carey could have seen my light if he had been on the track on the conductor’s side. I don’t know what would have kept him from seeing the conductor. — There was some testimony indieating that the engine and car were not on the usual and proper track for going southward to the objective point.
   Judgment reversed,.

R. J. Jordan, for plaintiff.

Dorsey, Brewster & Howell, for defendant.  