Davis v. Payne, Director General

The opinion of the Court was delivered by Mr. Justice Fraser. The undisputed facts of this case leave little room to doubt the result. The plaintiff’s intestate, Miss Lucile Davis, Miss Parsons, and a young man named Stilwell went out for a walk Sunday afternoon about 4 o’clock, on 8th September, 1918. They walked on the railroad of the Southern Railway between Beverly and Liberty, on the road between Atlanta and Charlotte. The road was double-tracked. That means that there was a track for trains going south and a track for trains going north. The war was on, and the railroads were under government control and operated by the government. Many regular and special trains were passing over these tracks daily. This little group of young people, about 18 to 20 years old, were walking on the left-hand track when a long freight train came upon them. The tracks were in a cut on the side of a hill. Just beyond the hill the tracks made a sharp *475 curve. The hill rose almost perpendicularly on the right, at least 12 feet high, and the base of the cut came very near the right-hand track. On the left side there was much more space between the track and the side of the cut, and the top of the cut was much lower. When the freight train came up, the young people had a choice of ways to get out of the way. They could have gone to the left, where there was ample space to stand in the cut in safety, or, if that appeared dangerous, they might have climbed entirely out of the cut. On the right they first came to the other track, and beyond the right track they were hemmed in by the impassable wall of the hill, with a very narrow margin between the track and the hill. If a northbound train should come (as it did come) they would be forced to stand in a narrow lane between two trains moving rapidly in opposite directions, or huddle close to the hill. They took the right-hand side and stood in the middle of the right-hand track. They not only chose the most dangerous side, but the most dangerous place on the most dangerous side. While standing in the place of utmost danger, a fast passenger train turned the curve coming towards them, going in the opposite direction. Miss Davis and Mr. Stilwell were killed. Miss Parsons looked up when the passenger train was about 50 feet away and jumped in time to save her life, but suffered a broken arm. This action was brought for the killing of Miss Davis. At the close of the testimony the defendant moved for a direction of a verdict in his favor. This motion was refused. It should have been granted. It is too well settled to require the citation of authority that, when there is a safe way and a dangerous way, he who takes the dangerous way cannot recover if injured. Here there was a perfectly safe way, and an extremely dangerous way, and the deceased took the extremely dangerous way. The train on the right-hand track, No. 138, was on schedule *476 time, running within its time limit. There was nothing to show that the speed of the train was improper or that it could have been stopped in a shorter distance. There was positive testimony that it could not have been. The plaintiff complains that no signals were given. The plaintiff’s testimony on this point fails. The witnessses state that they did not hear any signals. If a deaf man should say that he heard no signals, it would prove nothing. Here the witnesses were not deaf, but a long freight train was passing and making much noise, and blowing its whistle, and the fact that they did not hear or failed to notice signals from other trains amounts to nothing. The testimony shows that Miss Davis and Mr. Stilwell did not even look to see if a train was coming. They had to look only one way, and did not even look that way. The case shows that the deceased is the author of her own wrong and shows no negligence on the part of the defendant. There should have been directed a verdict for the defendant, and the judgment is reversed. Mr. ChiEE Justice Gary dissents. Mr. Justice Cothran concurs.