Smith v. Savannah, Florida & Western Railway Co. , 84 Ga. 698 ( 1890 )

Bleckley, Chief Justice.

1. Although this was the second grant of a new trial, we would be disposed to uphold it if it rested alone upon the ground that the damages found by the jury are excessive. The case is an exceedingly close one for any recovery at all, and this being so, there ought to be no extravagance or excess in the amount of damages which the company shall pay. Although the plaintiff was under ten years of age, he seems to have been a bright boy, having enough development of mind to know that he was doing wrong not to wait for the cars to get out of his way at the crossing, and in passing over the tracks in the company’s switching yard, where he was injured. Not only his capacity to know, but the actual state of his knowledge, was shown by his testimony in so far as the evidence given by a child can manifest the operations of his own mind.

2. As there is to be a new trial, we will briefly indicate our views of the law of the case upon the material questions which were discussed by counsel in the argument. The company had no right whatever to obstruct the highway for any length of time. But the occupation of its track by moving cars in the due course of business would be no obstruction. Nor would the mere casual stopping of the train, or the cars, upon the crossing amount to an obstruction, if they were not suffered to remain a needless or unreasonable length of time. But for them to stand upon the track so as to hinder the use of the highway needlessly or unreasonably, would, be an obstruction. And after the plaintiff had waited a reasonable time for the crossing to be opened, and it was not done, he had a right, if his occasion to go home was urgent, to deviate from the highway and if necessary pass round the obstruction over the company’s enclosed premises. In so doing, he would not be a trespasser, but would be in the exercise of a public right as a passenger upon the highway suddenly hindered from proceeding by coming in contact with a public nuisance on his route. Angell on Highways, §353 et seq.; Campbell v. Race, 7 Cush. 408, s. c. 54 Am. Dec. 728, and notes ; Branan v. May, 17 Ga. 136. With these authorities Jackson v. Nashville, etc. R. R., 13 Lea, 491, may possibly be reconciled, but if not, they seem to us correct nevertheless.

3. Supposing the plaintiff to be justified in leaving the highway and passing through the company’s grounds, he would be entitled to such diligence from the company’s servants using these grounds at the time as the circumstances would render reasonable and practicable. We think it was properly left to the jury to determine what acts of diligence on their part were appropriate. Although the servants did not know of his .presence, yet, if he was driven from the highway by an obstruction placed and left there by the company, the jury might conclude that they or the company should have anticipated his presence. The reasonableness of such anticipation would be a question for the jury under all the circumstances ; and if in their opinion his presence should have'been foreseen as probable, the rule of diligence would have been the same as if it had been actually known. If, on the contrary, it would be unreasonable to expect that this route would be taken by any one stopped or delayed by the obstruction, then the plaintiff would be entitled to no moi’e diligence than was usually exercised at that place in switching and handling trains or cars, as the company’s servants were doing on this occasion. Nor would mere negligence on the part of the servants subject the company to liability, unless the plaintiff exercised due care on his part, considering his age, intelligence and the facts surrounding him, to avoid being injured; that is, if the exercise of such care would have prevented the injury.

4. The particular means or measures of precaution which either party should have used under the circumstances would be for determination by the jury. For instance, if ordinary and reasonable diligence required ringing the bell on the engine whilst the train was backing, the bell should have been rung. And if the plaintiff was sufficiently intelligent, heedful, and conscious of danger to make it incumbent upon him to look and listen, he should have done his part in this respect, in so far as was reasonable.

The charge of the court was in substantial conformity with the views which we entertain and have expressed, and we think there was no error in refusing to give in charge any of the requests which the court declined. The grant of a new trial, however, we approve and fully endorse. Judgment affirmed