The Western and Atlantic Railroad vs Bloomingdale. The conductor and crew of the engine consisted of the following persons: C. B. Smith, conductor; W. W. Gravitt, engineer; W. M. Cullom, fireman; W. E. Dyer and W. M. Fulks, couplers. They say the engine was a regular switch engine, named "Kentucky;" that it ran down after the Georgia train went out, and that it was provided with lights. If the engine went down after the Georgia train left, then it could not have injured the plaintiff, for he says he was injured as the Georgia train passed, and as he stepped up on the Air-Line track to get out of its way. The defendant's engine ran slowly, and it seems morally certain, unless the conductor and the whole crew committed willful and corrupt perjury, that the plaintiff was not injured by their engine, or if it was so done, they had no knowledge of it. When the plaintiff was found by this crew, he was on the outer side-track, near Decatur street, while the defendant's engine was standing on the middle side-track, near the place where he was then lying. He said he had been hurt some twenty minutes, had walked from one to two hundred yards, and could not tell what train had injured him. Some one at the engine said, "Gentlemen, if any of you know who this gentleman is, carry him home, and we will pay for it." This was said by parties, provided with lights, in charge of the engine. The witness adds, the gentleman who made this remark was on the ground, at the engine, with a light in his hand. The witness, James Hughes, heard some one on the en gine say, "Some one take him away, we want to get out," and he offered to pay a colored man to help him take him away. Some one said it was the State Road engine that hurt the plaintiff. Those in charge of the engine were near by when this remark was made, and the witness "supposed" they could have heard it, but it was made in a "little The Western and Atlantic Railroad vs. Bloomingdale. noise," and he did not know whether they heard it or not. The engine was on one side-track, the plaintiff was found on another. An examination of this part of the evidence will show that its bearing on this issue is remote and unsatisfactory. There is no proof that those in charge of the engine heard what was said about what engine caused the injury, and ordinary humanity would have prompted any one required to leave the scene, as was the case with them, to do what was offered to be done—that is, to pay for removing the wounded man. Considerable evidence was introduced by both parties to show the movements of other engines and trains at and about the time and place the injury occurred. There was a "main-line" engine of the defendant, used as a "hostler's" engine in putting away cars, in charge of conductor Gresham, engineer Anderson, and Bowen, a train-hand, which went down to this yard about 6 o'clock and again between 11 and 12 o'clock P. M. of this day. This engine could not have injured the plaintiff. There was a train that went out at 4:20 and one that came in at 12:50 A. M. The trains that were moving nearly together were the Georgia Express, the defendant's engine, "Kentucky," and train number 16. Number 16 was a train known as the Air-Line Freight. The witness, George, says this train came in about half-past 8 or 9 o'clock. McGhee, Air-Line car repairer, says it came in about 9:30 o'clock; that this was its schedule, to the best of his recollection. Sellers, the night train-dispatcher, says its schedule was 8 o'clock, but it was twenty minutes late that evening. Roberts says it was due about 8 o'clock, but it was a few minutes late that evening. The defendant's switch-list of the 11th August shows that the defendant's engine delivered cars at the Georgia Railroad at 8:55, at the West Point Railroad at 9:05, and at the Air-Line Railroad at 9:15 o'clock of this day. The plaintiff says that the Georgia train that went down was the 9 o'clock passenger train. George says this train V 74-39 The Western and Atlantic Railroad vs. Bloomingdale. left at 8:45, very close, and McGhee says it passed the yard about 9:30 o'clock; Rose, that it left about 8:50. So, from the movements of these trains, engines and cars, and the circumstances connected therewith, considered apart from the direct evidence, it would be difficult to decide which train, engine or car injured the plaintiff. But assuming that the injury is proved to have been done by the defendant's engine or cars, and that the burden of showing the exercise of all ordinary and reasonable care and diligence to avoid the injury, is cast on the defendant, and there is some slight testimony (the plaintiff's alone) of the want of proper lights on the engine or cars, and of too rapid a speed in the running thereof, yet we think the testimony of the plaintiff is so confused as to be of but little value. Be this as it may, however, according to the record, we think the plaintiff's injury was the result of his own negligence, and that he could have avoided it by the exercise of ordinary care. What occasion, necessity or excuse was there for the plaintiff to go upon this railroad yard at the time and under the circumstances then existing? None whatever. There were several good streets leading to his home,-Decatur street, and a street next to the cemetery, one of them on each side of this railroad, and immediately adjacent to it, running parallel therewith, and also Hunter or Fair street, all well lighted with gas, and provided with good foot-ways, all leading to his home, and making access thereto easy and pleasant. It was, perhaps, a nearer or more convenient way down the railroad track, but this is no excuse for voluntary peril. The plaintiff left a convenient and well-lighted way, especially provided for him and the general public, and undertook to go at night, without lights, down the space between the railroad tracks, a place in itself a place of danger, only eight feet in width, and over which the head blocks of the engines projected eighteen inches, thus narrowing the way, through which, says one of the plaintiff's witnesses, a man to go safely must walk straight and not stagger, The Western and Atlantic Railroad vs. Bloomingdale. and even then, he would be in danger of being scalded by hot water and steam emitted from passing engines. He went, under the belief, at least, that placards had been posted there, warning the public to keep away, knowingly and recklessly into danger, in the darkness, when he was, perhaps, to some extent intoxicated, and where, except in a narrow space between the two main lines, "it was rough walking," where there were eight railroad tracks, over which engines and cars were constantly shifting to and fro, this yard being the place of the main delivery of cars to the Georgia Railroad, the Air-Line Railroad and the West Point Railroad, and got upon the track in the darkness, at the very time when he says he knew this engine and cars of the defendant were due at that switch. "No person shall recover damage from a railroad company for injury to himself, where the same is caused by his own negligence." "If the plaintiff, by ordinary care, could have avoided the consequences to himself, caused by the defendant's negligence, he is not entitled to recover." Code, §§3034, 2972; The Georgia Railroad and Banking Co. vs. Neely, 56 Ga., 540; Lavier vs. The Central Railroad Co., 71 Ga., 222. This case approves Neely's case and declares that case to be the law of this state. Savannah, Florida and Western Railroad vs. Stewart, 71 Ga., 439; Macon and Western Railroad vs. Johnson, 38 Ga., pp. 409, 432. This case contains a clear statement of the rule by McCay, J. The plaintiff's husband stood on the rear platform of the passenger car whilst it was standing still, and there remained until a freight train ran into it and killed him; and in this case, as well as in the one now under consideration, the party's negligence, or want of ordinary care, consisted in his going where he had no business to go, and in voluntarily putting himself in a place of danger. This court properly held the rule applicable to the facts of the So in Higgins vs. Cherokee Railroad, 73 Ga., 149, head-note 9, the plaintiff voluntarily got on an open flat case. The Western and Atlantic Railroad vs. Bloomingdale. car when there was a passenger coach attached to the train, and got a cinder or spark in his eye, which he claimed destroyed his sight: Held, that he was not entitled to recover, though there may have been some slight negligence on the part of the defendant; and further, that the case ought to have been non-suited. So, in the Central Railroad Co. vs. Dixon, 42 Ga., 327, where the plaintiff was injured by the starting of the cars, as he was passing under them after dark, while they were temporarily stopped to take in wood and water, it was held, under this rule, he could not recover, though the engineer gave no signal for the starting of the train. This case is well in point, and illustrates the rule that no one has the right to recover damages where he voluntarily and rashly goes into danger, in the dark, though there may be some slight negligence on the part of the defendant. So, in Southwestern Railroad Co. vs. Johnson, 60 Ga, 668, where the plaintiff's husband was lying on the track when he was killed, it was held that she could not, because of this rule, recover, even though the defendant may not have blown the whistle at the proper time at the crossing of a public road. So, in Georgia Railroad Co. vs. Thomas, 68 Ga., 744, where the plaintiff's horse was frightened by the blowing of the whistle and he was thrown to the ground and injured, and where it was claimed he was riding a horse known to be afraid of the cars and on an insecure saddle, this court held that the three grounds of defence allowed to railroad companies in cases of injuries to personal property laid down in Neely's case in 56 Georgia, and which were as follows: first, that the plaintiff consented to the injury; second, that he caused it solely by his own negligence; third, that the defendant, by its agents, exercised all ordinary care and diligence,-did not submit fully the defendant's case, and that the court ought to have gone further and charged that, if the conduct of Thomas was not that of a prudent man, and if he could, by the exercise of |