Holmes v. Central Railroad & Banking Co.

Walker, J. 1. A Railroad Company is liable for any damage done to persons, stock, or other property, by the running of the locomotives, or cars, or other machinery, unless the company shall make it appear that their agents exercised all ordinary and reasonable care and diligence. Rev. Code, sec. 2979; and the company is liable for injuries caused by the carelessness, negligence or improper conduct of its agents. Ib. see. 3292. The measure of the liability is, “all ordinary and reasonable care and diligence,” not “ gross negligence,” as was insisted by counsel for defendant in error. 2. We think the Court properly refused the request to charge “that the plaintiff could not recover unless the jury [596] found from the evidence that the defendant was guilty of gross negligence;” and if this were the only ground fora new trial, it should not have been granted. Much was said in the argument as to the liability of the Railroad, under the Act of January, 1852, pamp. Acts, p. 108; Rev. Code, sec. 742 to 745. By this Act, certain things were required to be done by railroads, and certain liabilities incurred, in case of failure. This act was intended for the protection of persons and property, at public crossings of the road. The public have a right to cross the railroad track at the public road crossings. When traveling the highway, persons are lawfully on the railroad track, at the point of-crossing; and if an injury is done at such public crossing, .then, the provisions of the Act of 1852 become material. In this case, the accident having occurred elsewhere, the provisions of this act are not applicable. The fact that so many persons traveled,'on foot, over the portion of the road where the negro was killed, did not make the railroad a public road. In deciding the question of what would be reasonable care and diligence, possibly this fact might be taken into consideration, in connection with all the other facts of the case. Taking all the facts of the case, as they appear in the record, we think the Court did right to grant a new trial, 'on the ground that the verdict Avas against the evidence. The negro Avas on the road of the defendant, at a point where he had no right to be. It Avas at the hour of midnight. The train was going at the rate it usually ran at that place. The Aveight of the evidence is in favor of the theory that the negro Avas lying down on the track, and would not, likely, be seen until it would be too late to check up the train. The facts, all taken together, as they appear in the record, shoAv the exercise of all ordinary and reasonable care and diligence, on the part of the agents of the Railroad Company, on that occasion; ánd the Court, very properly, granted a neAV trial on this ground. Judgment affirmed.