Atlanta & W. P. R. Co. v. Hudson

Dorsey, Brewster & Howell and O. H. Thompson, for plaintiff in error.

J. R. Terrell and F. P. Longley, for defendant in error.

LUMPKIN, J. (after stating the facts). 1, 2. Several charges of the court were alleged as error, on the ground that they undertook to instruct the jury what acts ordinary care required the employees of the company to do. In one instance he charged as follows: "You will look to all these questions under the evidence in this case to determine the truth of the same for yourselves, for the law imposes the duty on the railroad company to maintain a lookout to discover cattle on its track, to stop its train as soon as cattle appear upon its track, or in the act of approaching it, or so near to the same that a slight change of position by them would result in their destruction or injury." This was error. "In the trial of an action in a court of this state for a negligent tort, is it error for the court to tell the jury what facts do or do not constitute negligence, unless there is a statute or valid municipal ordinance which in terms or in effect declares the act referred to to be negligence." Savannah, Florida & Western Ry. Co. v. Evans, 115 Ga. 315, 316, 41 S. E. 631, 90 Am. St. Rep. 116.

That the Supreme Court may employ certain language in discussing a case, especially in regard to the facts under consideration, does not necessarily render such language proper for use by the judge of a trial court in charging a jury. A justice of the Supreme Court, in giving reasons for a judgment rendered, often uses argumentative language which would be wholly inappropriate for use in a charge by a judge of a trial court. There is no prohibition of law against an expression of opinion of the facts of the case by the Supreme Court. There is a direct prohibition as to an expression of such an opinion by a trial judge in his charge. Civ. Code 1895, § 4334. The presiding judge gave to the jury as propositions of law substantially certain statements which were made in opinions of this court in discussing the facts of cases then before it. East Tenn. Railway Co. v. Burney, 85 Ga. 636, 11 S. E. 1028; Central of Ga. Ry. Co. v. Ross, 107 Ga. 75, 32 S. E. 904; Atlantic Coast Line R. Co. v. Williams, 120 Ga. 1064, 1047, 48 S. E. 404. What was said in those decisions was in connection with the question whether the verdicts were sustained by the evidence and whether there was in fact evidence of negligence. The difference between such discussion and legal propositions suitable for a charge is obvious. The trial judge should not tell the jury what acts would constitute negligence and what would not, but should instruct them as to the proper measure of diligence and leave them to determine, in view of all the evidence bearing on the subject as to the time, place, circumstances, and happenings, and the whole transaction as disclosed by the evidence, as to whether there was or was not a want of due care. Central of Ga. Ry. Co. v. McKinney, 118 Ga. 535, 45 S. E. 430; Calvin v. State, 118 Ga. 73, 44 S. E. 848; Savannah Ry. Co. v. Evans,

Williamson v. Southern Ry. Co

115 Ga. 315, 316, 41 S. E. 631, 90 Am. St. Rep. 116. There is no conflict between this ruling and that in W. & A. R. Co. v. Burnham, 50 S. E. 984. There is a wide difference between charging as to a duty imposed by law upon a carrier of passengers and telling the jury that it was the duty of the railroad to do certain specified acts to avoid injury to cattle along the road. 3. The measure of duty required of the employees of a railroad company in respect to stock along the line of its road is ordinary care. A charge which submitted to the jury to determine whether the defendant company "did use all the means at its command” declared too stringent a rule and was erroneous. See cases cited in Hopkins on Personal Injuries, §§ 121, 123.

Judgment reversed. All the Justices concur, except CANDLER, J., absent.

WILLIAMSON 7. SOUTHERN RY. Co.

(Supreme Court of Appeals of Virginia, June 15, 1905.)

[51 S. E. Rep. 195.]

Railroads Action for Injuries-Evidence.*—In an action against a railroad for injuries, evidence examined, and held insufficient to show that plaintiff at the time of his injury was using the defendant's tracks as a walkway as an invited guest of the defendant or otherwise than as a bare licensee.

Same-Negligence.*-Where a railroad track has been used as a walkway by the public for many years, and such use is known to the railroad company and its employees, the sole duty of the company to persons whom it may reasonably expect to be on the track is discharged by the use of reasonable care to discover and avoid injurying them.

Same. A railroad is under no obligation to make preparation in advance for the protection of mere licensees in using its tracks for a walkway, and hence its failure to furnish a light on its engine on a dark night was not negligence as to a licensee using its tracks for a walkway.

Error to Law and Equity Court of City of Richmond.

Action by James E. Williamson against the Southern Railway Company. Judgment in favor of defendant, and plaintiff brings Affirmed.

error.

*As to who are licensees on railroad tracks, see foot-notes appended to Booth v. Union Terminal Ry. Co. (Iowa), 14 R. R. R. 768, 37 Am. & Eng. R. Cas., N. S., 768.

As to the care due licensees and trespassers on railroad tracks, see foot-notes appended to Anderson v. Seattle-Tacoma Interurban Ry. Co. (Wash.), 14 R. R. R. 380, 37 Am. & Eng. R. Cas., N. S., 380; foot-notes appended to Central of Georgia Ry. Co. v. Williams Buggy Co. (Ga.), 14 R. R. R. 171, 37 Am. & Eng. R. Cas., N. S., 171; Maysville & B. S. R. Co. v. McCabe (Ky.), 13 R. R. R. 459, 36 Am. & Eng. R. Cas., N. S., 459; foot-notes appended to Jordan v. Grand Rapids & I. Ry. Co. (Ind.), 13 R. R. R. 397, 36 Am. & Eng. R. Cas., N. S., 397; foot-notes appended to Koegel v. Missouri Pac. Ry. Co. (Mo.), 11 R. R. R. 358, 34 Am. & Eng. R. Cas., N. S., 358.

Williamson v. Southern Ry. Co

Meredith & Cocke, for plaintiff in error.

Munford, Hunton, Williams & Andersen, for defendant in

error.

HARRISON, J. This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company. The damages were assessed by the jury at $1,500, subject to a demurrer to the evidence, which was sustained, and judgment given for the defendant.

The accident which is the subject of inquiry occurred upon that portion of the main line of the defendant which runs along the south bank of James river, at or about its entry of the company's yards in the city of Manchester. A little northwest of the city of Manchester, in James river, is an island called "Belle Isle," upon which is located an iron manufactory. This island is connected with the south bank, or Manchester side, of the river by a railroad bridge built by the defendant company for its use in hauling freight, upon each side of which is provided a sideway for the use of persons going to and from the ironworks. These ironworks and the railroad bridge connecting them with the main line of the Southern Railway on the Manchester side of the river have been in operation for many years. When the employees from Belle Isle cross the bridge and reach the south bank of the river, they have two routes open to them—one leading away from the railroad and into the city of Manchester, and the other along the right of way of the defendant company into the city. These employees had for many years used both routes, the choice depending upon the point of destination in the city. Those who, for their convenience, adopted the latter route, had always enjoyed its use by the passive acquiescence of the defendant.

The plaintiff had been for "three or four months" an employee of the ironworks on Belle Isle, and on the 27th day of November, 1903, he left the works 15 minutes before 6 o'clock to go to his home. When he reached the south bank of the river he pursued, as was his regular habit, the route along the right of way of the defendant company. He walked on the pathway at the side of the track a distance of about 1,400 feet, but, finding the path rough, he looked and listened to ascertain if a train was approaching, and, being satisfied that no train was coming, he stepped upon the railroad track and walked thereon for a distance of 25 yards, when he looked back and found a work train of the defendant company so close upon him that he could not jump out of the way in time to avoid the injuries complained of. The plaintiff says that it was a very dark night, that the engine was provided with no headlight or lights of any description, and when he looked back it was so dark that he could not see the engine good. He further says that his hearing was poor in one ear, and that it was downgrade at that point, which caused the train to run without making much noise.

It is contended by the plaintiff in error that when using the

Williamson v. Southern Ry. Co

track and right of way of the railroad on the south side of the river as a convenient route to his home he occupied a higher relation to the defendant company than that of licensee, it being insisted that "the defendant so built its bridge with walkways on each side thereof that the workmen on Belle Isle could come across to the Manchester side, and use its tracks as their route to and from their homes; that no invitation in a practical way could have been more strongly given; that it is idle to say that the company only built the bridge to get the men to the shore, and that it never meant for them to use the tracks as their route home. The two things, the bridge and the route, were too closely connected for them to be separated with fairness. The old bridge and route had been used jointly for 50 years, and the new bridge and the route were intended and expected to be used jointly. The use was in fact by invitation."

We have been unable to find any fact or circumstance in the record to support this contention. No relation is disclosed between the defendant and the ironworks other than that of common carrier and shipper, and the defendant can hardly be held to have built its bridge from Belle Isle to the shore for the benefit of the workmen there employed. It was built for the use and the benefit of the railroad company in hauling freight. The construction of the walkways on each side of the bridge was a mere incident, and, while put there for persons to walk on, they served as a proclamation and warning to such persons not to use the track, rather than an invitation to use it. When those using the walkways on either side of the bridge reached the shore, they bore no relation whatever to the defendant company. They were uncontrolled and free to go where, when, and by whatsoever route they pleased. Such of them as chose to follow the right of way of the railroad as a convenient route to their homes did so voluntarily, and without invitation from the defendant company. On the contrary, 240 feet from where the plaintiff was struck there was a large sign 4 feet square, with the following warning thereon:

"Danger-Beware. The public is notified that these railroad tracks and right of way are no thoroughfare; must be used by trains, and are dangerous for pedestrians, who are warned to use the public streets and keep off these private tracks."

This warning is signed by the general manager of the defendant company. It is set up 10 feet high, and conspicuously in view of the plaintiff every time he passes over the right of way of the defendant in going to his home.

In the light of these facts, our conclusion is that the plaintiff was not using the railroad track on the evening of his injury as the "invited guest" of the defendant company, but was there as a

bare licensee.

An action for negligence only lies where there has been a failure to perform some legal duty which the defendant owes to the party injured.

Williamson v. Southern Ry. Co

In the case at bar the evidence shows that the right of way of the defendant company, at the point where the accident occurred, had been for many years in daily use as a walkway by persons from Belle Isle, and that this use and the particular hours of such use were well known to the company and its employees. Under these circumstances it was the duty of the company to use reasonable care to discover, and not to injure, persons whom it might reasonably expect to be on its tracks at that point. Blankenship v. C. & O. Ry. Co., 94 Va. 449, 27 S. E. 20; C. & O. Ry. Co. v. Rodgers' Adm'x, 100 Va. 324, 41 S. E. 732.

In the case of N. & W. Ry. Co. v. Wood, 99 Va. 156, 37 S. E. 846, where the plaintiff was standing on the platform of a freight depot, and was injured by a freight train that ran against the platform, this court said: "Being there as a mere licensee, the defendant did not owe him the duty of maintaining its roadbed, switches, and connected appliances in proper condition for running its trains, or of providing and using proper and safe trucks, couplings, and machinery on its cars, or of properly inspecting the same, or of employing competent servants to manage its trains, or to run them at a safe and proper rate of speed. The general rule being that a bare licensee-that is, one who is permitted by the passive acquiescence of the railroad company to come upon its depot platform for his own purposes, in no way connected with the railroad-is only relieved from the responsibility of being a trespasser, and takes upon himself all the ordinary risks attached to the place and the business carried on there"-citing 2 Shear. & Red. on Neg. § 705; Nichol's Adm'r v. W. O., etc., R. Co., 83 Va. 102, 5 S. E. 171, 5 Am. St. Rep. 257; Gillis v. Penn. R. R. Co., 59 Pa. 129, 98 Am. Dec. 317; Holland, etc., v. Sparks, 92 Ga. 753, 18 S. E. 990.

In the case of C. & O. Ry. Co. v. Rodgers' Adm'x, supra-a case similar in its facts and circumstances to that under consideration-this court approved an instruction which told the jury that the defendant company did not owe the plaintiff's intestate the duty of blowing its whistle, ringing its bell, running its engines at any particular rate of speed, or having a light on said engines or tender; that if they believed from the evidence that the servants of the defendant in charge of the engine could not, in the exercise of reasonable care, under the circumstances surrounding them at the time, have known of the danger to the plaintiff's decedent in time to avoid the accident, they must find for the defendant; but that if they believed from the evidence. that the servants of the defendant in charge of the engine could, in the exercise of reasonable care, under the circumstances surrounding them at the time, by having a proper lookout, have discovered the danger of the plaintiff in time to avoid the accident, they must find for the plaintiff.

The result of these decisions is that a railroad company owes no duty of prevision to a bare licensee. It is under no obligation to make preparation in advance for his protection. Its sole duty