
    Cain v. The Macon Consolidated Street Railroad Co.
    July 29, 1895.
    By two Justices.
    Action for damages. Before Judge Ross. City court of Macon. December term, 1894.
    Cain was going slowly across Elm street in Macon, at right angle to the car-track on which a street-car was coming at the rate of about six miles an hour. This car had no conductor, and the motorman was receiving a fare and making change for a passenger. His face was turned from the lookout in front, and his hands were off the handles by which he controlled the movement of the car. Cain was looking upon the ground “in a brown study,” and was not aware of the approach of the car until he was on the track, when he looked up, saw the car just about to strike him, threw up his arm toward it, and was knocked about fifteen feet, falling off the track. The car ran about twenty feet further before it stopped. It was forty or fifty feet from the crossing when the motorman saw Cain about four feet .from the track, apparently going upon it without noticing the car’s approach. The motorman then rang the gong and applied the brake. The wind was blowing hard in the direction opposite to that in which the ear was moving. It was between nine and ten o’clock in the morning. Cain was not thinking of the car as he started across, and did not look up and down the street. The car could have been seen some distance away, the street being straight. Had Cain been paying attention, he could have stepped off the track and avoided being struck, after the gong began to ring.
   Simmons, C. J.

The evidence introduced hy the plaintiff showing clearly that, even if the defendant was negligent at all, the plaintiff, after its negligence began, might hy the exercise of ordinary care easily have avoided being injured, he was not entitled to recover. The court was therefore right in granting a nonsuit. ' Judgment affirmed.

Grace & J ones, for plaintiff.

Bacon & Miller, for defendant.  