
    Barfield v. Southern Railway Company.
    Argued June 3, —
    Decided June 30, 1903.
    Action for damages. Before Judge Reagan. Fayette superior court. September 16, 1902.
    A trestle of the defendant company was built across a public highway. There were allegations and evidence to the effect that the space left for passage of loaded wagons under the trestle was too low and too narrow; but the plaintiff was familiar therewith, having driven thereunder several times. The defendant long before had been notified of the insufficient space, and had caused to be made some alteration of the structure, which but partially relieved the situation. A driver could have alighted from his wagon and walked with his team under'the trestle. On the morning of October 9, 1899, the plaintiff was driving two mules drawing a wagon loaded with four bales of cotton. As he approached the trestle he crouched with his feet near the end of one of the lower bales and his back and one arm against an upper bale; which would have been a safe position if the mules had walked steadily through the space. But they became frightened, either by the overhead timbers or by unknown cause, and made a lunge, .which threw the plaintiff upward, catching his shoulder and dragging him back, breaking his leg and otherwise injuring him.
    
      B. B. Spurlin and B. L. Berner, for plaintiff,
    cited Civil Code, §§ 510, 2220; 39 Am. & Eng. R. Cas. 245 ; 1 Rap. & Mack’s Dig. 695; 94. Ga. 135; 92 Ga. 223; 59 Ga. 544.
    
      Arthur Heyman, J. W. Wise, and A. O. Blalock, for defendant,
    cited Civil Code, §§2322, 3830; 17 Ga. 136; 19 Ga. 440; 110 Ga. 89, 165; 101 Ga. 223; 112 Ga. 70, 102, 185; 95 Ga. 112; 113 Ga. 597; 111 Ga. 814; 108 Ga. 270; 107 Ga. 347; 74 Ga. 469; 1 Thomp. Neg. §§ 186, 221, 227, 240; Ell. Roads (2d ed.), §§ 635, 636, 637-8; 45 N. E. 363; 61 N. W. 80; 15 Gray, 577; 112 Ind. 133 (2 Am. St. R. 164); 33 O. St. 246 (31 Am. R. 533); 27 Kan. 673; 54 Minn. 94 (55 N W. 819); 81 Ill. 300 (25 Am. R. 278); 44 S. W. 422; 20 R. I. 793 (40 Atl. 236); 95 Va. 640 (29 S. E. 675); 96 N C. 382 (2 S. E. 74); 162 Mass. 321 (38 N. E. 499); 146 Pa. St. 11 (23 Atl. 204); 99 Ind. 10; 101 Pa. St. 616 ; 70 Ia. 436.
   Cobb, J.

When this ease was here before (115 Ga. 724), it was held that the plaintifi was not entitled to recover, because it affirmatively appeared from his own testimony that he could by the exercise of ordinary care have avoided the injuries for which he sued. The evidence in the present case is substantially the same as that in the record of the previous case, and there-was therefore no error in granting a nonsuit.

Judgment affirmed.

By jive Jutices.  