SWAYNE, District Judge.
The case comes to tins court upon writ of error containing 21 separate specifications founded upon 15 special requests by defendant to charge, which the court refused, and upon exceptions to the charge as given by the court. The first error we would notice upon the record is that in which the court treated the plaintiff below as a passenger, and charged the jury that the defendant below owed him extraordinary care and diligence as such passenger. We think plaintiff below was not a passenger in the contemplation of [294]*294law. He was not upon the train, had not been to the depot recently, nor purchased a ticket, and did nothing to notify any of the officers or agents of the defendant company that he was even a prospective passenger. The company did not owe him extraordinary care or diligence as such passenger, but only ordinary care as to the general public.
We think the court erred in charging the jury as recited in the eighteenth specification of error, in which it assumed to be a fact that the train was running at 8 or 10 miles per hour, when it injured the plaintiff below, and further suggested to the jury that it usually ran into the station among the passengers at that rate of speed. ,
We think the requests contained in twelfth and thirteenth assignments of error, that there was no allegation or proof to justify or uphold a verdict for punitive damages, were erroneously refused, and that this was error.
Another question arising out of many of the assignments of error, and embodied in many of the special requests to charge by defendant below, is the question whether the injury to plaintiff below was caused by his negligence; that if, by the exercise of ordinary care, the plaintiff could have avoided the consequence caused by defendant’s negligence, if defendant was negligent, then he could not recover. This request to charge the law long established both by the statutes and decisions of the state of Georgia as well as the decisions of courts generally was repeatedly requested by the defendant below, and was as repeatedly refused by the court. This doctrine is so well established, and is of such long standing, and upon which the courts of the country are so unanimous, that we should not stop to make any citations to sustain it if it was not so pointedly questioned by the record. First, section 3830 (2972) of the Code of Georgia reads as follows:
“If the plaintiff by ordinary care could have avoided the consequence to himself caused by the defendant’s negligence, he is not entitled to recover; but in other cases the defendant is not relieved although the plaintiff may in some way have contributed to the injuries sustained.”
In such cases the doctrine of contributory negligence does not apply. In Railroad v. Bloomingdale, 74 Ga. 604, Branham, J., indorses this doctrine; and, after quoting from several Georgia as well as noted English decisions to sustain it, adds:
“These eases were followed and made the basis of the opinion of this court in Branan v. May, 17 Ga. 186, and doubtless that case, as well as its citations, were duly considered by our codifiers in drafting sections 2972 and 3034 of the Code.”
In Blitch v. Railroad, 76 Ga. 335, Blandford, J., indorses the above doctrine, and adds:
“So it appears that the plaintiff, in trying to make out his case, made out a full and perfect defense for the defendant, rebutting all assumption of negligence against it.”
See, also, Railroad v. Harris, Id. 508, by Jackson, O. J.
In Enright v. City of Atlanta, 78 Ga. 297, Jackson, C. J., correctly states the law as follows:
“Our view of the law is that, to prevent recovery, he must have been not only lacking in ordinary care and diligence to prevent injury, but that by that ordinary care and diligence, had he used them, he would have avoided the injury.”
[295]*295In Smith v. Railroad (a case in which the fads are similar in many respects to those at bar, except it was established that the company was negligent) 82 Ga. 804, 10 S. E. 112, Bleckley, C. J., announces the law of Georgia and the construction of section 2972 of the Code as follows:
“It is beyond dispute that the railroad company was negligent. It failed to give the signals, to check the train at public crossings, and was running at a speed altogether too high. Enough, and more than enough, appears to fix liability upon the company if only its negligence were involved. But the evidence makes the plaintiffs negligence quite as apparent as that of the company. Not only so, but it shows in the fullest and clearest light that by the use of ordinary care he could have avoided the consequence to himself of the company’s negligence; and, that being so, the Code (section 2972) declares in express terms ihat he is not entitled to recover. This rule of law it is that bars him, and renders recovery impossible. It is idle to try to evade the rule by dwelling upon the negligence of the company, for, unless Hiere is negligence of the company which would otherwise render it liable, the rule wo are considering would have no place in the law. It is only where there is negligence the consequences of which are to be shunned that the plaintiff is charged with the duty of shunning them if he can do so by the exercise of ordinary care, His failure in this respect does not stop with reducing the amount of his damages, but defeats a recovery altogether. Kailroad v. Bloomingdale, 74 Ga. 604, and cases cited on the able opinion of Brannon, J. Nor is this mere Georgia law dependent on a local statute, but the principle prevails elsewhere.”
This rule applies to a passenger as well as to the general public at railroad crossings. See McLarin v. Railroad Co., 85 Ga. 504, 11 S. E. 840. See, also, Ashworth v. Railway Co., 97 Ga. 307, 23 S. E. 86. The above doctrine is fully supported by Markham v. Railroad Co. (N. C.) 25 S. E. 786, and by Berkeley v. Railway Co. (W. Va.) 26 S. E. 349, and in Railroad Co. v. Houston, 95 U. S. 697, in which Mr. Justice Field, after commenting upon the charge of the court below as misleading and upon facts not before it, indorses the above doctrine in the following language:
“The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employes in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequence of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must hear the possible consequence of failure.
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SWAYNE, District Judge.
The case comes to tins court upon writ of error containing 21 separate specifications founded upon 15 special requests by defendant to charge, which the court refused, and upon exceptions to the charge as given by the court. The first error we would notice upon the record is that in which the court treated the plaintiff below as a passenger, and charged the jury that the defendant below owed him extraordinary care and diligence as such passenger. We think plaintiff below was not a passenger in the contemplation of [294]*294law. He was not upon the train, had not been to the depot recently, nor purchased a ticket, and did nothing to notify any of the officers or agents of the defendant company that he was even a prospective passenger. The company did not owe him extraordinary care or diligence as such passenger, but only ordinary care as to the general public.
We think the court erred in charging the jury as recited in the eighteenth specification of error, in which it assumed to be a fact that the train was running at 8 or 10 miles per hour, when it injured the plaintiff below, and further suggested to the jury that it usually ran into the station among the passengers at that rate of speed. ,
We think the requests contained in twelfth and thirteenth assignments of error, that there was no allegation or proof to justify or uphold a verdict for punitive damages, were erroneously refused, and that this was error.
Another question arising out of many of the assignments of error, and embodied in many of the special requests to charge by defendant below, is the question whether the injury to plaintiff below was caused by his negligence; that if, by the exercise of ordinary care, the plaintiff could have avoided the consequence caused by defendant’s negligence, if defendant was negligent, then he could not recover. This request to charge the law long established both by the statutes and decisions of the state of Georgia as well as the decisions of courts generally was repeatedly requested by the defendant below, and was as repeatedly refused by the court. This doctrine is so well established, and is of such long standing, and upon which the courts of the country are so unanimous, that we should not stop to make any citations to sustain it if it was not so pointedly questioned by the record. First, section 3830 (2972) of the Code of Georgia reads as follows:
“If the plaintiff by ordinary care could have avoided the consequence to himself caused by the defendant’s negligence, he is not entitled to recover; but in other cases the defendant is not relieved although the plaintiff may in some way have contributed to the injuries sustained.”
In such cases the doctrine of contributory negligence does not apply. In Railroad v. Bloomingdale, 74 Ga. 604, Branham, J., indorses this doctrine; and, after quoting from several Georgia as well as noted English decisions to sustain it, adds:
“These eases were followed and made the basis of the opinion of this court in Branan v. May, 17 Ga. 186, and doubtless that case, as well as its citations, were duly considered by our codifiers in drafting sections 2972 and 3034 of the Code.”
In Blitch v. Railroad, 76 Ga. 335, Blandford, J., indorses the above doctrine, and adds:
“So it appears that the plaintiff, in trying to make out his case, made out a full and perfect defense for the defendant, rebutting all assumption of negligence against it.”
See, also, Railroad v. Harris, Id. 508, by Jackson, O. J.
In Enright v. City of Atlanta, 78 Ga. 297, Jackson, C. J., correctly states the law as follows:
“Our view of the law is that, to prevent recovery, he must have been not only lacking in ordinary care and diligence to prevent injury, but that by that ordinary care and diligence, had he used them, he would have avoided the injury.”
[295]*295In Smith v. Railroad (a case in which the fads are similar in many respects to those at bar, except it was established that the company was negligent) 82 Ga. 804, 10 S. E. 112, Bleckley, C. J., announces the law of Georgia and the construction of section 2972 of the Code as follows:
“It is beyond dispute that the railroad company was negligent. It failed to give the signals, to check the train at public crossings, and was running at a speed altogether too high. Enough, and more than enough, appears to fix liability upon the company if only its negligence were involved. But the evidence makes the plaintiffs negligence quite as apparent as that of the company. Not only so, but it shows in the fullest and clearest light that by the use of ordinary care he could have avoided the consequence to himself of the company’s negligence; and, that being so, the Code (section 2972) declares in express terms ihat he is not entitled to recover. This rule of law it is that bars him, and renders recovery impossible. It is idle to try to evade the rule by dwelling upon the negligence of the company, for, unless Hiere is negligence of the company which would otherwise render it liable, the rule wo are considering would have no place in the law. It is only where there is negligence the consequences of which are to be shunned that the plaintiff is charged with the duty of shunning them if he can do so by the exercise of ordinary care, His failure in this respect does not stop with reducing the amount of his damages, but defeats a recovery altogether. Kailroad v. Bloomingdale, 74 Ga. 604, and cases cited on the able opinion of Brannon, J. Nor is this mere Georgia law dependent on a local statute, but the principle prevails elsewhere.”
This rule applies to a passenger as well as to the general public at railroad crossings. See McLarin v. Railroad Co., 85 Ga. 504, 11 S. E. 840. See, also, Ashworth v. Railway Co., 97 Ga. 307, 23 S. E. 86. The above doctrine is fully supported by Markham v. Railroad Co. (N. C.) 25 S. E. 786, and by Berkeley v. Railway Co. (W. Va.) 26 S. E. 349, and in Railroad Co. v. Houston, 95 U. S. 697, in which Mr. Justice Field, after commenting upon the charge of the court below as misleading and upon facts not before it, indorses the above doctrine in the following language:
“The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employes in these particulars was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequence of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must hear the possible consequence of failure. Upon the facts disclosed by the undisputed evidence in the case, we cannot see any ground for a recovery by the plaintiff. Not even a plausible pretext for the verdict can be suggested, unless we wander from the evidence into the region of conjecture and speculation. Under these circumstances, the court would not have erred had it instructed the jury, as requested, to render a verdict for the defendant.”
See, also, Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125.
The only remaining error we have to notice is that raised by the first assignment of tlie request of defendant’s counsel at the conclusion of all the evidence to direct and instruct a verdict in favor of the [296]*296defendant on tlie grounds that the evidence demanded such a verdict, and that no other verdict could properly be rendered under the evidence and under the law applicable in this case. There can be no doubt of the right and duty of the court to do so when the evidence introduced shows that by the exercise of ordinary care he might have avoided the injury. It is the undisputed testimony in the case that the approaching train could be seen from 200 yards to a quarter of a mile before it reached the point where the accident occurred. It was daytime, and the plaintiff below was in possession of sight and hearing. All other witnesses saw it approaching, and most of them heard the bell. It is true that when plaintiff below was asked by counsel to state in his own way the circumstances of the injury, in his answer thereto he states no less than four times in the first paragraph that he looked for the train; but this was not and cannot be true. It never should have been submitted to the jury, and it is too much to ask this court to affirm a judgment upon a statement so evidently false. The train was in sight, and he either did not look, or, if he did, he saw it; he would be obliged to see it. When there is any question to leave to the jury, they should determine it; but when the testimony of a witness is so absolutely incredible as to be impossible of belief, the court should so determine. This was. done in Ashworth v. Railway Co., 97 Ga. 307, 23 S. E. 86, and in Payne v. Railroad Co. (Mo. Sup.) 38 S. W. 308, and was approved by Thayer, J., in Railway Co. v. Pounds, 27 C. C. A. 112, 82 Fed. 217. The comments of the court in the Payne Case seem so appropriate to thp facts of this case that we conclude the opinion by an extract therefrom:
“But in this instance it is plainly proved beyond peradventure that this statement of plaintiff ‘that he did all in his power to ascertain whether there were any trains approaching,’ etc., was not, and, indeed, could not he, true. This matter of denying probative force even to direct and affirmative testimony, when such testimony is plainly at war with the physical facts and surroundings, has passed into precedent. Thus, in the leading case of Artz v. Kailroad Co., 34 Iowa, 153, it is said: ‘But it is urged by the appellee’s counsel that the plaintiff testifies that he did both look and listen to see and hear the train, but did not; and that this testimony shows that he was not guilty of contributory negligence, or, at the very least,- it made that a question of fact for the jury. The difficulty, however, with the question is that, the conceded or undisputed facts being true, this testimony cannot, in the very nature of things, be true. It constitutes, therefore, no conflict. Suppose the fact is conceded that the sun was shining bright and clear at a specified time, and a witness having good eyes should testify that at the time, he looked, and did not see it shine, could this testimony be true? The witness may have been told that it was necessary to prove in this case that he did look, and did not see the sun shine; he may have thought of it with a desire that it should have been so; he may have made himself first believe it was so; and this belief may have ripened into a conviction of its verity; and possibly he even may testify to it in the self-consciousness of integrity. But, after all, in the very nature of things, it cannot be true, and hence cannot, in the law, form a basis for a conflict upon which to rest a verdict. A man may possibly think he sees an object which has no existence in fact, but which it may be difficult, if not impossible, to prove did not exist, or was not seen. But an object and power of sight being conceded, the one may not negative the other. In this caso the.plaintiff had good eyes. The train was approaching him in the night, with the engine’s headlight burning brightly. If the plaintiff looked,' he must have seen it, or he must have looked very negligently and carelessly. In either case, he was necessarily, in, the eyes of the law, guilty of contributory negligence pre-. eluding his right to recover.’ ”
[297]*297The judgment is reversed, and the cause remanded, with instructions to the court below to award a new trial.