Holmes v. Central Railroad & Banking Co.

1. Railroad companies, by their agents, should exercise all reasonable care and diligence in the running of their locomotives, cars and other machinery, and are liable for damages caused by their failure to do so. 2. In a case where a railroad train ran over and killed a slave, who was on the track at a point sixty yards from a public road-crossing, the Court was requested to charge the jury “that the plaintiff is not entitled to recover, unless the jury find, from the evidence, that the defendant was guilty of gross negligence,” which charge the Court refused to give. The jury having found a verdict against the railroad company, a new trial was moved for, and the motion granted by the Court, on the ground that the charge, as requested, ought to have beén given ; and, on the further ground, that the verdict was contrary to the principles of law, equity and justice. Hold, that although the charge requested was properly refused, yet, upon the facts of the case, the granting of the new trial was right.

Statutory action. New trial. By Judge Gibson. Burke Superior Court. - May Term, 1867. The Central Railroad and Banking Company, as lessees of the Augusta and Waynesboro’ Railroad, were sued by Jane B. Holmes for killing a slave (in July, 1854,) belonging to said deceased. The spot' at which the engine killed the slave was about seventy or eighty yards from the public road, but it was on a part of the track used very much by foot passengers to make a short cut from one to another of the public roads, which was known to defendant's agents. It was down grade at that point, and the view was there obstructed by a cut. The killing took place near midnight. The blow posts were not at such distance from the public crossings as required by law, and it was doubtful, from the testimony, whether the engineer blew the whistle when he passed the blow posts. The engine was going at the usual speed at the time; the slave was on the track, but not standing up; the engineer did not ¿see him till he was struck by the engine, and then supposed that the slave was a hog or sheep. As to the charge of the Court,- see the motion for a new trial. The jury found for the plaintiff for $1,500 00, and interest. The defendant moved for a new trial, on the following grounds: 1st and 2d. Because the verdict was contrary to 'the,evidence, etc. 3d. Because it is contrary to the charge of the Court, in the following particulars, to-wit: 1st, in this, that the Court charged the jury that if they found, from the evidence, that, at the time of the accident, plaintiff's slave was upon the defendant’s track, without defendant's permission, that defendant was using ordinary care, and that the injury was not received at a public' road-crossing, the plaintiff is not entitled to recover. 2d, that if the jury believed, from the evidence, that the plaintiff's slave, by the exercise of ordinary prudence, could have avoided the injury, plaintiff is not entitled to recover, although the defendant may have been in some degree negligent. 3d,.that if the jury believed, from the evidence, that the plaintiff’s slave was the most negligent, they must.find for the defendant. 4th, that if the defendant was engaged in its legitimate employment, and used ordinary or reasonable care, the plaintiff could not recover. 5th, that the track of a railroad company is not a public highway, and persons who use the same in the pursuit of their ordinary private business, except at a public road crossing, are actual trespassers; and 6 th, that .if plaintiff's servauts and the defendant were equally at fault, that plaintiff could not recover. 4th. Because the Court erred in charging as follows: 1st the provisions of the Act of January 22, 1852, prescribing rules and regulations to be observed by Eailroad Companies in running engines, etc., do not apply, unless the injury is received at a public road-crossing, (but I leave it for the jury to say whether, under the circumstances, the defendant should be held liable or not, if the accident was in the neighborhood of a crossing.) 2nd, in this, that after charging “ some difference must be made between cattle and human beings in reference to negligence,” (he added, “ in the case of human beings some little negligence must be shown, perhaps as much as was shown in this case, would be sufficient.”) 5th. In refusing to charge, as requested, that plaintiff could not recover unless the jury found, from the evidence, that the defendant was guilty of gross negligence. The Judge certified that he did not charge so much of the 4th ground as is included in brackets. He ordered a new trial upon the grounds, that he should have given the 5th request in charge, and that the verdict was contrary to the evidence. Of this order the plaintiff below complains.