
    McELROY v. GEORGIA, C. & N. RAILWAY CO.
    The only negligence alleged against the defendant railway company being the failure of its servants to observe the requirements of section 708 of the code, as to blowing the whistle of the engine and checking the speed of the train in approaching a public road crossing, and it appearing that the crossing in question was one where the track of the railway company crossed the public highway upon a bridge or trestle above the latter, there was no error in granting a nonsuit, the section in question being applicable to grade crossings only.
    Atkinson, J., dissenting. — The provisions of section 708 of the code, in so far as the same require the engineer of a locomotive to blow the whistle, are applicable not only to crossings at grade, but also to crossings where the public road passes above or underneath the track of the railroad.
    March 30, 1896. Argued at the last term.
    Action for damages. Before Judge Jones. City court of DeKalb county.
    May term, 1895.
    
      Albert & Hughes, for plaintiff.
    
      Erwin, Oobb & Woolley, for defendants.
   Simmons, Chief Justice.

McElroy sued the railway company for personal injuries, predicating his suit upon section 708 of the code, the only negligence alleged against the defendant being the failure of its servants to comply with the requirements of that section in not blowing the whistle and checking the speed of the train in approaching a public crossing. It appeared from the evidence at the trial, that the crossing was one where the railroad crossed the public highway upon a bridge or trestle ten or fifteen feet above the highway. At' the conclusion of the plaintiff’s evidence, the court, on motion of the defendant’s counsel, granted a nonsuit, holding that the section referred to did not apply to a crossing of this character, but applied to crossings at grade only.

Section 708 provides that there must be fixed on the line of the railroad and at a distance of four hundred yards from the center of each public road crossing, and on each side-thereof, a post, “and the engineer shall be required, whenever he shall arrive at either of said posts, to blow the whistle-of the locomotive until it arrives at the public road, and to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road.” After a careful consideration of the phraseology of this section, a majority of the court-are óf the opinion that the trial judge was right in his construction of it. The object of the statute was manifestly tire protection of persons and property where the track of the railroad crosses the public road upon the bed of the highway; and there is no indication that it was intended to-apply also where the railroad passes above- -or underneath the highway. Where the crossing is at grade, the railroad company and the public have a common right to the use of the highway; and it was doubtless on account of the great-danger attending the exercise of this right by both, and the consequent need of some provision for the protection of persons or property upon or about to go upon the track at such points, that the legislature enacted the statute from which this section is taken. It is quite clear that the requirement that the speed shall be checked applies only where the crossing is at grade, for the statute says this shall be done “so as to-stop in time should any person or thing be crossing said track on said road”; and of course there could be no occasion for stopping the train for the protection of persons not on or about to go upon the track itself. We think it is also-clear that the provision as to the blowing of the whist-1© is applicable only where the checking of the speed is required,, fo'r both things are required to be done at the same time. Whenever the train is approaching a crossing to which the statute is applicable, and has arrived at one of the posts required to be placed four hundred yards from the crossing, the engineer is required to blow the whistle of the locomotive until it arrives “at” the public road, “and to simul taneously check and keep checking,” etc.. These requirements are also stated conjunctively in section 710, which provides that if any engineer neglects to blow the whistle “and to check the speed, as required in section 708,” he is guilty of a misdemeanor, etc. If an engineer were indicted under this section, it would not be a sufficient defense that he did one of these things. In order to comply with the law he would have to do both. If the legislature had intended that these requirements should be separable, or that both of them should be applicable where the crossing is at grade, and only one of them should apply where.the railroad is above or below the public road, we think they would have used language expressive of that intention. To place this construction upon the statute would be to engraft upon it a meaning not warranted by anything in the language of the statute itself; and this court has already held that the statute, being penal in its nature and subjecting employees failing to observe its requirements to indictment and punishment, is to be construed strictly, and its requirements should not be extended by construction. Morgan v. Central Railroad, 77 Ga. 791.

The decision of this court in the case of Bowen v. Gainesville, Jefferson & Southern R. Co., 95 Ga. 688, and the reasoning of Justice Lumpkin therein, must be understood and construed with reference to its own facts. There the crossing was a.t grade, and hence the train was approaching a crossing to which the statute was undoubtedly applicable. If we are right in our conclusion in the present case, that the statute was inapplicable except as to. grade crossings, the doctrine of the Bowen case is not involved.

Whether, independently of the statutory requirements, a recovery 'could be had'upon the state of facts alleged, is a question we are not required in this case to decide, the action, as already stated, being based wholly upon Jhe statute. Judgment affirmed.

Atkinson, Justice, dissented.  