The Georgia Railroad vs. Williams. in the others, if we are right in the view we have taken of the nature of the surety's obligation in this case. The plaintiff's right of action accrued when the complainant dismissed his bill, whether he did this with or without the leave of the court. 2 High on Inj., §1649, Damages for the rents, issues and profits of the land, together with the waste committed on it while plaintiff was kept out of possession by reason of the continuance of the injunction, may be recovered under this bond, as may also such reasonable counsel fees as he was compelled to expend in order to rid himself of it. Ib., §§1673, 1685, 1688, and cases cited under each section. Of course the plain tiff can have no damages against the surety beyond the penalty of his bond. 74 723 74 723 f127 475 1. Where a person injured by a railroad train was walking on the track without the permission of the company, and had passed be- fii0 171 yond the crossing of a public road about two hundred yards, when he was injured by a train coming up behind him, a non-compliance on the part of the company with the law in regard to the duty of railroad companies in respect to the erection of blow-posts and the blowing and continuing to blow the whistle, and the checking and continuing to check the speed in running, so as to keep the train under control at a public crossing, may go to the jury as a circumstance showing negligence. (a.) This case differs from that of Holmes, administratrix, vs. Central Railroad, 37 Ga., 593. 2. A plea which admitted that the plaintiff was injured by the train of the defendant, but denied that it was guilty of negligence, and asserted that it used all ordinary care and reasonable diligence, and that the negligence of the plaintiff caused the injury, was not a plea of justification which entitled the defendant to open and conclude the argument. 3. Rules of a railroad company, requiring that an employé should be stationed at the end of the car in front, or should move abreast of it when the train was running backwards, where he could be seen by the engineer and could signal him in case of any obstruction on the track, were admissible in evidence, as showing that the com The Georgia Railroad vs. Williams. pany regarded the moving of the trains backwards as more dangerous and requiring more care than running in the usual manner, although such rules were not public rules, but only intended for the guidance of the agents and officers of the company. 4. The requests of the plaintiff in error to charge were substantially given in the charge, except in so far as they conflicted with the principles stated above, and so far they were properly refused. 5. The evidence is sufficient to support the verdict in the finding for the plaintiff, and the damages are not excessive; and being approved by the presiding judge, it must stand. HALL, J., dissented. March 30, 1885. Railroads. Damages. Negligence. Evidence. Roads and Bridges. Before Judge POTTLE. Warren Superior Court. October Adjourned Term, 1884. Williams brought suit against the Georgia Railroad for a personal injury, resulting from being run over by a train, laying his damages at $20,000.00. Defendant pleaded the general issue and a special plea, which was as follows: "And now comes the defendant, by its attorneys, and says that it is true, as stated in plaintiff's declaration, that plaintiff was injured at the time and place stated in his declaration by the running of defendant's locomotive and train; and that, by reason of said injury, as aforesaid, the presumption of negligence is upon defendant. "Defendant, taking the onus thus imposed upon it, says: “That, at the time and place aforesaid, defendant was in the discharge of its business as the owner and operator of a railroad, on its own road and right of way. That its said train, in all its appliances and appointments, was in proper order. "That the same was operated by careful, experienced and skillful agents. "That while it was so operated, with all ordinary care and reasonable diligence, plaintiff intruded upon defendant's track. "That though, under the circumstances, defendant owed no duty, except the negative duty not wilfully or wantonly or recklessly to injure him, nevertheless defendant used, through its servants and agents, all ordinary care and reasonable diligence towards him; but, notwithstanding such care and diligence and by reason of the negligence of plaintiff, plaintiff was injured, as set forth in his declaration. "And defendant says that defendant is not liable to plaintiff, The Georgia Railroad vs. Williams. but it is justified; and of this defendant puts itself upon the country and prays the judgment of the court.” On the trial, the evidence in favor of the plaintiff showed, in brief, as follows: He started from Barnett Station to his home, a short distance away, walking on the cross-ties of the Georgia Railroad track. The Washington branch road diverges gradually at this point, and the train was going out, running only a few feet from him. When a short distance beyond the public road crossing (about a 150 to 200 yards) a construction or gravel train came up the defendant's track behind plaintiff. This train consisted of fourteen cars-two "shanty cars" and twelve flat cars. It was running backwards at a very rapid speed, variously estimated at from twelve to thirty miles. The rules of the company required, when a train was running backwards, that a man should be posted at or abreast of the front end of the foremost car, for precautionary purposes, and where he could be seen, and could signal the engineer. In the present case, there was a man on the foremost car. He took his position a little distance from the end, on the ground that he was afraid of falling off if he stood at the end. No signal was given by blowing the whistle or ringing the bell in approaching the crossing, nor was the speed of the train slackened. The train-hand on the top of the car saw the plaintiff as the train was approaching him, but gave no signal. At the time of the accident, he had looked away, and was gazing at the train on the Washingtion branch, which was running on a track almost beside this train, and on which this gravel train was rapidly gaining. Plaintiff had worked for defendant in 1866, and was familiar with the rules governing the running of trains. He knew nothing of the approach of the train until he was struck by it. When this happened, a boy on the platform of the front car called out that they had killed a man, and the hand on top thereupon signalled the engineer. The speed was slackened a little, but the train did not stop, but went on, and was soon out of sight. The Georgia Railroad vs. Williams. Plaintiff was picked up in an insensible condition and carried home; both legs were crushed, and one had to be amputated; besides, there were injuries to his back and shoulder, causing great pain and suffering. Loss of time, value of services ($1.25 per day), and expectancy of life were shown (his age being fifty-two). The evidence on behalf of the defendant conflicted with this in the following particulars: The construction train had been standing on a side track for thirty-five minutes. When the train started for Washington, this gravel train went down the road towards Augusta, until it passed the switch, and then backed up the main track. The trainhand on top of the car saw plaintiff walking on the cross-ties beside the track, but supposed he would get off of the track. When near plaintiff, he was hidden from the sight of the train-hand by the end of the car. The signal was given for starting back, and the whistle was sounded three times at the blow-post on that side of the crossing, but was not blown continuously, nor was the speed slackened. The speed was only six to eight miles an hour. When about the length of two cars from plaintiff, the young hand on the bottom platform of the car testified. that he hallooed to plaintiff; that the latter looked around, but did not get off, and that he threw a chip at plaintiff without effect. After the injury, the train was brought to a stop In a distance of about three hundred yards, such a train could not have acquired a speed of more than twelve or fourteen miles an hour. The jury found for the plaintiff $6,040.00. Defendant moved for a new trial, on the following grounds: (1) to (4.) Because the verdict was contrary to law, evidence and the charge of the court. (5.) Because the court refused to allow defendant to open and conclude the argument of the case, under the plea filed by defendant admitting the injury and justifying the same. (6.) Because the court admitted in evidence the following rule found in the "Rules and Regulations of the Geor The Georgia Railroad vs. Williams. gia Railroad, Edition No. 3, to take effect January 1st, 1883. This book supersedes all of prior date. It is the property of the company and for the use of employés only," to wit: "When backing or pushing cars, one man must always be stationed on top of the front end of the leading car, or must walk or run by side of track abreast of leading car, where he can be seen by engineer, or signal to him in case of any obstruction on track;"—the objection being that said rule was for the protection of the railroad company, its agents, employés and persons on its trains, and not for the benefit of the public, and especially men walking on the track of the railroad, like this plain. tiff was shown to be at the time of the accident to him. (7.) Because the court refused to charge the following requests of defendant: "It is made the duty of railroad companies to erect blow-posts four hundred yards from public crossings, and to blow the whistle of the engine at such blow-posts, and to commence checking the speed of the train, and to continue to blow and to check until the the crossing is reached. This is a provision of law meant to secure safety for persons lawfully using the crossings. The railroad company being allowed to pass over a public road, the law says it must do so in such a way as not to impair the use and value to the public of what the public previously used freely. Any one put under the protection of the provision of the law, who is injured by the failure of the company to perform its duty in this respect, is presumptively entitled to damages. But this presumption of law was not meant to secure safety for persons walking on and along the track, instead of using the public road, or to secure to such persons so walking any better right to walk on or along the track, at or near a crossing, than elsewhere on the track, and such persons cannot invoke these provisions of law for their protection." "The liability of defendant to plaintiff depends upon these questions: Did defendant owe any legal duty to plaintiff? If so, what was that duty? Has defendant failed in |