
    Dowdy v. Georgia Railroad Company, and vice versa.
    
    1. The evidence showing that the plaintiff’s husband could, by the exercise of ordinary care, have avoided being killed by the engine, she is not entitled to recover for his homicide, even though the defendant’s engineer may have been in some degree negligent, and the court did not err in granting a nonsuit.
    2. The court did right, on motion of defendant’s counsel, to rule out the testimony of a witness that “the engineer had time to blow the whistle before the deceased was struck,” and in refusing to allow plaintiff’s attorney to ask the witness “if the engineer didn’t have time to signal the approach of the engine, and had he done so, would the deceased not have had time to have gotten off the track?” the court ruling: “You can show all the facts, and it is for the jury to draw conclusions from the facts.”
    February 15, 1892.
    Railroads. Negligence. Evidence. Nonsuit. Before Judge Jenkins. Greene superior court. March term, 1891.
   Judgment affirmed on main bill; cross-bill dismissed.

Action by the widow of Dowdy for damages from his homicide by the railroad company. She excepted to the grant of a nonsuit, and to the ruling out of testimony. The defendant excepted to the overruling of its demurrer to the declaration.

The declaration alleged that on July 1, 1890, at the time Dowdy was killed, he was on his way to the defendant’s depot at Union Point, intending there to take its train as a passenger to Athens, a station on its line, of road, and in order to reach the depot he had to walk down its road-bed between the main line track and a siding, the space between these tracks being the pass-way for passengers to use in approaching the depot, and the only way provided by the defendant for approaching its depot by persons residing in that portion of Union Point where Dowdy resided; that this space or pass-way had been used by the public for over thirty years, with the full knowledge and consent of the defendant, and was as much frequented as any thoroughfare in the village; that the defendant had invited and encouraged the use of this walk, or passway, by the public, in placing steps at that end of its depot for the convenience of persons coming from that direction intending to board its train, and by placing at intervals crossings leading to this passway, for the use and convenience of such persons; that it was necessary for Dowdy, in order to reach the depot, to cross one of the tracks next to it, and he was in the act of doing so when, without any fault or negligence on his part, he was knocked down and killed by . the engine and cars of the defendant, which ran rapidly upon him from his rear until they were so close when discovered-that he, not being aware of their approach, was unable to avoid the injury ; that said injury was caused by the rapid and reckless running of the defendant’s train known as the “ fast train,” its speed being twenty-five or thirty miles per hour at a point near the depot; that the defendant’s servants neglected and failed to blow the whistle or toll the bell of the locomotive, and to simultaneously check and keep cheeking the speed of the engine while approaching a public road crossing, within two hundred yards of which Dowdy was killed; and that had the defendant performed either of these statutory requirements, the accident could not have occurred. Bjr amendment it was alleged that Dowdy ivas going to the defendant’s depot, and had walked for thirty steps down the track when he was struck by the train ; that the defendant’s employees and the engineer in charge of the train failed to warn him of his danger; and that he had ample time to have done so, and had he done so Dowdy could have got off the track.

The testimony was, in substance, as follows : Dowdy was seen going down the railroad track in the direction of the depot; said he was in a hurry as he was going off on the train to Athens. He was killed beyond the public crossing, between the crossing and the depot. The blow-post before reaching the crossing is situated just in front of the house of a witness who saw the train that killed Dowdy as it passed her house; was attracted to the right of way because she heard the train blow about a mile off'. She did not hear the train blow or the bell ring, nor could she tell that the train was slackened on approaching the crossing. The train slackened its speed just before reaching the mossing, but it was running at the rate of twenty-five miles an hour at the crossing. It was the fast train of the defendant, running on the Athens branch. There was no public road or street on either side of the railroad. Dowdy was walking down the track that is used by the people living in that portion of Hnion Point. This track is frequented as much as any street at Hnion Point. The railroad authorities have prepared foot-crossings for the people to use in approaching the depot; Dowdy was killed within thirty or forty yards of one of these crossings. He lived about a quarter of a mile from the depot. There is no way to get to the depot from where he lived, except to come down the railroad track or go around back of the mill, which would make it a third further, at least, than to go down the track. It is between three and four hundred yards from the public crossing to the depot. Dowdy was killed within sixty or seventy yards of the depot. After striking him the train did not stop until it reached the depot. It was a windy morning; the wind was blowing from the east; and Dowdy was walking towards the east. The track is on an embankment twelve or fifteen feet high, and a part of the Ogeechee river runs under the embankment. The people living up in that part of Union Point can approach the depot only on this embankment, or go twice as far around the mill. All the people living along up the Athens branch use this track to approach the depot. People pass along there evex-y hour of the day, frequently as maxxy as a dozen going to and coming fx-om the depot, which use has beexx eoxitinued for thix-ty or fox-ty years. There ax-e crossings for foot-passengex-s aloxig this track. There are three or four tracks oix the embaxxkment. One could go froux Dowdy’s house to the depot by going around by the mill, but this route is vox-y rough and makes a complete elbow. There are steps at the rear of the depot fox-people to use coming down the embankment, and by crossing this gangway reach the depot; these steps are used for that purpose by the pxxblic. They are on the right of way of the defendaxxt. Dowdy was killed aboxxt ten o’clock in the day. He was going towards the depot, and had to cross one of the tracks to get there. He walked about thirty feet- before he was struck. - A witness who saw hinx and the train did not hexir the whistle blow; would have heard it if it had done so. The engineer did xiot x-ing his bell. If he rang his bell or blew his whistle or slackened the speed at the public crossing just before reaching the depot, witness did not notice it. 'When witness first saw Dowdy he was walking down the center of the middle track; he then stepped off and walked between the tracks, and then stepped on the side-track and walked down it about thirty feet before the train struck him. If he had looked hack he could have seen the train coming for half a mile. He looked back just as the train struck him; he was walking rapidly in the direction of the depot when struck. (This witness stated that the engineer had time to blow the whistle before Dowdy was struck, which statement was ruled out on defendant’s motion. Plaintiff’s counsel asked the witness if the engineer did not have time to signal the approach of the engine, and had he done so would Dowdy not have had time to have got off the track ? The court sustained defendant’s objection to this question.) Another witness testified that he was standing on the platform, and his attention was not particularly called to the train until some one exclaimed that it had hit Dowdy; and that he could not say positively whether they rang the bell or not, did not hear it if they did, and was close enough to have heard it had they done so. Dowdy and his wife lived very near the railroad track. She testified that he had been to the depot that morning, had forgotten something, came back for it and went off in a big hurry, afraid he would miss his train, leaving the house before the train came; that she did not hear the whistle blow or bell ring that morning as the train approached the crossing; that she and her husband were both familiar with the running of the trains; and that “ the train that killed him turned right around at the depot to go back to Athens, and it was this train he was going to take.” Another witness testified that Dowdy was killed within ten or twenty steps of a foot-crossing near the depot, which crossing was used by the public who transacted business with the railroad; that he was killed just a little west of the track crossing the path ; and that the engineer could have seen him half a mile down the track, and he could have seen a train several minutes before it struck him if he had looked back. There was also testimony as to the value of the life of the deceased.

John C. Hart, for plaintifi.

J. B. Gumming and Bryan Cumming, for defendant.

Bleckley, C. J.,

dissenting. Where a footman in daylight, at a place used by the public as a passway for thirty years, steps upon a railroad track in front of an engine, but long enough to walk upon the track thirty feet before he is run down and killed, it is a question for the jury whether it was wantonness in the engineer not to give a signal for him to get off.  