
    Ashworth v. East Tenn., Va. & Ga. Railway Co.
    August 12, 1895.
    Action for damages. Before Judge Henry. Floyd superior court. September term, 1894.
   Simmons, C. J.

Without’ regard to the question of the defendant’s negligence, the evidence introduced by the plaintiff showing clearly that by the exercise of ordinary care he might have avoided injury, it was a proper case for a nonsuit.

Judgment wffivyncd.

Ashworth sued the railway company. Two verdicts in his favor have been rendered, both of which were set aside by the court below. To the grant of a second new trial plaintiff excepted; and the Supreme Court held said ruling not error (94 Ga. 715). On'the third trial the court granted a nonsuit, and plaintiff excepted. The grounds of the motion for nonsuit were, that the testimony failed to show any negligence on the part of defendant’s servants; and that even if they were negligent, plaintiff could have avoided the consequences of such negligence by ordinary care and diligence.

Plaintiff testified: September 6, 1890, I started from Rome, a little before sundown, to my home about five miles from the city, in company with Wofford and Shrimpshire. We went to the lower end of Broad street, walked out on defendant’s railroad and crossed the Etowah river bridge. We remained on the railroad until we struck the point where the Silver creek public road crosses the railroad; then took the public road and went to Holder’s store, whiph is about a half-mile to the left of the railroad, going south. We remained at Holder’s store a little while: then took the road or street that leads from the Silver creek public road to the Cave Spring road. The road we took was used for a public passway. It was my understanding that it was a street; that over it the dummy line ran; where the street and dummy line crossed defendant’s track plank are laid about sixteen feet long, don’t know how wide, but clear across the main line and side-tracks. Just before reaching that point I stopped and listened for an approaching train, but neither saw nor heard any. I walked on, and just before stepping on the main line of defendant’s track, I listened and looked northward toward Rome, and did not see nor hear any train. I looked southward, but could not see for box-cars defendant had left standing on its side-tracks, which protruded over the plank crossing. When I stepped upon the main line I was looking toward Rome, and on turning my head I noticed for the first time the engine right on me. I wheeled to jump in the direction from which I came, but was at that moment hit by the engine and knocked about twenty feet off to the left of the main line, going north. The crossing is perhaps three or four hundred yards from where the Silver Creek public road crosses the railway track. There was one blow-post on the left of the dummy-line, going west, and east of the defendant’s main line, going north, about twenty yards from the crossing. There is a furnace on the left side of the dummy-line, going west, and east side of the main line of the railroad, going north, about fifty yards from the crossing. There are also two side-tracks belonging to defendant, that extend from the Atlanta junction to some distance above the crossing, I think, a little up grade from the crossing. I saw a line of box-cars standing op the side-track that was on the side from which I was approaching; I don’t know how many, but one protruded up over the crossing. I don’t know how far it was from the side-track to the main line. That box-car protruded perhaps a’ foot over the rail on the roadbed. I don’t know whether there was room for a person to stand between the said car and the main line when a moving train is passing over the main line, before reaching the main line. No whistle was blown nor bell rung. The train was moving about fifteen miles an hour. I don’t know how far they ran before stopping, after hitting me. I was rendered unconscious for several days. I was fifty-seven years old, of sound body and mind, etc.

Cross-examined: I drank some beer in Rome during the day; not more than three glasses. To go by Holder’s store was about two miles out of my way; went by with Wofford who had business there. The place where I was injured was about a mile and a half from Rome; we reached it about an hour or an hour and a half after dark. I can’t tell exactly how far north of the place where I was injured the Silver Creek public road is, nor how far from the place of injury to where the Silver Creek and Rockmart roads fork; itis not a great way. The Silver Creek road leads to Rock-mart, and the Cave Spring road to Cave Spring. Opposite the place where I was injured they run parallel, about three hundred yards apart. The place where I was injured is between the two roads and in a field: the field was enclosed and had a gate on each side of it, one near Holder’s store on 'the east side of the field, and one on the west side of the field at the Cave Spring road. The eastern gate was standing open; the western gate was closed. It has been so long since I was injured, that I don’t recollect whether the whole of the field was cultivated or not. I may have been at that place once during the year, before I was injured. I don’t think the place could be called a town; it was called New Rome; don’t recollect how many houses were then in that vicinity. The streets had been thrown up; couldn’t tell whether there was any work being done on this street about that time. I don’t know that any road-hands ever worked it. I know it was called a public passway, and was passed a good deal. I expect it was as much as 200 yards from where you enter that field to where I was hurt. Don’t think the furnace was in blast then. There was no other railroad train in that vicinity. I don’t know how far a running train can be heard; have no idea about it; don’t know that I have a right to form an opinion about it; don’t know whether a train running ten or fifteen miles an hour could be heard 200 yards by a person when there was a row of box-cars between him and the train; don’t know how far that train was' from me when I first saw it; saw it before it hit me, but hardly a second. It was almost an imperceptible time from the time I saw it till it struck me. That is an open country clear down to the junction, about a mile and a half south of where I was hurt, with nothing to obstruct the view but the empty cars on the side-track. I could not see the train coming when I was 200 feet from the railroad, on account of those cars; don’t know how long the line of cars was. If the headlight was burning, I don’t knoiv how far I could see it. I am no railroad man, though I have been about railroads a good deal. If you were looking for a headlight, you could see it a good distance; if a headlight was burning, I suppose it would cast its light some distance in front of it. I suppose it would cast its light some distance on the rails before it. The distance between the side-track where the box-cars were standing, and the main line, may be six feet; if so, a man standing in that space would probably see an approaching engine fifty yards away if he was looking for it. He would be obliged to see it. Wofford did not get hurt. I was ahead of him. After I got down in the space between the standing cars, I looked toward Rome. I did not have time to look both ways at once. I could have stopped between the tracks and looked both ways. I was hurrying home. I did not stop. I looked south after I got on the track. I stepped up on the track and then looked south; before I got on the track, I looked north toward Rome for a train. I could not look north and south at the same time. Probably if I had just stopped there, I could have looked north and then south. I did not stop at all. I could have stopped between the sidetrack and the main track before I stepped on the main track. Of course I could have looked south if I had stopped. When I stepped on the track, the train struck me. I do not know whether the train was ten feet from me when I stepped on the track. I turned to jump, but hadn’t time. If you step on a railroad track, and a train strikes you just as you step up, I don’t know that it is right at you; it must have been pretty close. I don’t say that it was absolutely necessary for the train to have been in ten feet of me when I stepped on the track. I have heard freight-trains running as much as a mile away. Sometimes a running train makes a right smart noise. I don’t know that they always make considerable noise when running ten or fifteen miles an hour; a train at that speed makes a right smart noise. I don’t know that I could have heard it as far as fifty feet; it looks like I ought to ]iave heard it. If I had heard that train as far as that, I would not have stepped on the track.

Nat Harris and Hal Wright, for plaintiff.'

McOutchen & Shumate, for defendant.  