Simmons, C. J.
Without’ regard to the question of the defendant’s negligence, the evidence introduced by the plaintiff showing clearly that by the exercise of ordinary care he might have avoided injury, it was a proper case for a nonsuit.
Judgment wffivyncd.
Ashworth sued the railway company. Two verdicts in his favor have been rendered, both of which were set aside by the court below. To the grant of a second new trial plaintiff excepted; and the Supreme Court held said ruling not error (94 Ga. 715). On'the third trial the court granted a nonsuit, and plaintiff excepted. The grounds of the motion for nonsuit were, that the testimony failed to show any negligence on the part of defendant’s servants; and that even if they were negligent, plaintiff could have avoided the consequences of such negligence by ordinary care and diligence.
Plaintiff testified: September 6, 1890, I started from Rome, a little before sundown, to my home about five miles from the city, in company with Wofford and Shrimpshire. We went to the lower end of Broad street, walked out on defendant’s railroad and crossed the Etowah river bridge. We remained on the railroad until we struck the point where the Silver creek public road crosses the railroad; then took the public road and went to Holder’s store, whiph is about a half-mile to the left of the railroad, going south. We remained at Holder’s store a little while: then took the road or street that leads from the Silver creek public road to the Cave Spring road. The road we took was used for a public passway. It was my understanding that it was a street; that over it the dummy line ran; where the street and dummy line crossed defendant’s track plank are laid about sixteen feet long, don’t know how wide, but clear across the main line and side-tracks. Just before reaching that point I stopped and listened for an approaching train, but neither saw nor heard any. I walked on, and just before stepping on the main line of defendant’s track, I listened and looked northward toward Rome, and did not see nor hear any train. I looked southward, but could not see for box-cars defendant had left standing on its side-tracks, which protruded over the plank crossing. When I stepped upon the main line I was looking toward Rome, and on turning my head I noticed for the first time the engine right on me. I wheeled to jump in the direction from which I came, but was at that moment hit by the engine and knocked about twenty feet off to the left of the main line, going north. The crossing is perhaps three or four hundred yards from where the Silver Creek public road crosses the railway track. There was one blow-post on the left of the dummy-line, going west, and east of the defendant’s main line, going north, about twenty yards from the crossing. There is a furnace on the left side of the dummy-line, going west, and east side of the main line of the railroad, going north, about fifty yards from the crossing. There are also two side-tracks belonging to defendant, that extend from the Atlanta junction to some distance above the crossing, I think, a little up grade from the crossing. I saw a line of box-cars standing op the side-track that was on the side from which I was approaching; I don’t know how many, but one protruded up over the crossing. I don’t know how far it was from the side-track to the main line. That box-car protruded perhaps a’ foot over the rail on the roadbed. I don’t know whether there was room for a person to stand between the said car and the main line when a moving train is passing over the main line, before reaching the main line. No whistle was blown nor bell rung. The train was moving about fifteen miles an hour. I don’t know how far they ran before stopping, after hitting me. I was rendered unconscious for several days. I was fifty-seven years old, of sound body and mind, etc. Free access — add to your briefcase to read the full text and ask questions with AI