Columbus Railroad v. Newsome , 142 Ga. 674 ( 1914 )

Evans, P. J.

(After stating the facts.) According to the petition, the plaintiff was on a public street in the city of Columbus, where he had a right to be. He was not guilty of any negligence in stopping his horse to water at the drinking-fountain provided for that purpose. The unknown negro man was driving his horse along the streets, and over the defendant’s track, in the exercise of due diligence. It is alleged that the defendant was negligent in certain particulars in running its car against the horse driven by the negro man, and thrusting the horse against petitioner and injuring him. The only question, therefore, which can arise is, whether the negligence of the company proximately caused the plaintiff’s injury. We think it clear from the allegations in the petition that the plaintiff sustained his injury on account of the negligence of the defendant’s motorman, and that such negligence was the proximate cause of the injury. The hurling of the horse against the petitioner, under the circumstances described in the petition, is controlled by the same principles which would apply to the projection of an inanimate object set in motion by the defendant’s negligence. In the celebrated squib case, Scott v. Shepperd, 2 W. Bl. 892, it was held that an action of damages would lie for originally throwing a squib, which, after having been thrown about in self-defense by other persons, at last put out the plaintiff’s eye. In Alabama Great Southern Railroad v. Chapman, 80 Ala. 615 (2 So. 738), the plaintiff had been walking on the track of the defendant’s road, and got down on the edge of the embankment to permit an approaching train to pass. A cow came up on the other side of the embankment, and was thrown from the track by the engine, and bounced down and hit the plaintiff. There was evidence tending to show that the engineer was negligent in running his engine against the cow; and it was held that if the animal was thrown from the track by the negligence of those in charge of the train, the injury to the plaintiff would be deemed to have been proximately caused by the engineer’s negligence. In Quill v. New York Central R. Co., 32 N. Y. St. 612 (11 N. Y. Supp. 80), a passing train collided with a coal-cart at a railroad crossing. The cart was thrown against a person standing on a highway, inflicting injuries which caused his death. It was contended that the collision between the engine and the coal-cart was due to the negligence on the part of the company’s servants in not giving proper and timely warning of the approaching train. A recovery in favor of the administrator of the decedent was sustained. The facts in the case of Western & Atlantic Railroad Co. v. Bailey, 105 Ga. 100 (31 S. E. 547), are very similar to the facts of this case. An engineer negligently ran his train upon a trespasser walking upon the track, killing him, and hurling his body against a track-hand who was standing near the track; and it was held that the plaintiff was entitled to recover on the ground that “the negligence of the defendant put in motion the destructive agency, and the injury sustained by the plaintiff was directly attributable thereto.” See Savannah Electric Co. v. Wheeler, 128 Ga. 550 (58 S. E. 38, 11 L. R. A. (N. S.) 1176). There was no error in overruling the demurrer. There is no merit in the special demurrer.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent„