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CENTRAL RAILROAD & BANKING Co.

V.

SMITH.

(Georgia Supreme Court.)

Negligence. Omission of Statutory Duty. While negligence is always a question of fact when the law is silent touching the specific act done or left undone, yet where a statute expressly enjoins an act, the act is then within all degrees of diligence, even the very lowest, and its omission is negligence as matter of law.

Same. Statutory Limit of Speed. - Instruction. — An ordinance limiting the rate of speed in passing over crossings to ten miles an hour, does not imply that this rate may not be exceeded between crossings; and in an action to recover damages for personal injuries, it is error to instruct the court, that, if at the time of the accident the rate of speed was more than ten miles an hour, that would be negligence, if the injury was occasioned to plaintiff between crossings and sixty-five yards from the nearest.

Trespasser on Track. Gross Negligence. To walk along the middle of a railroad track between crossings when it is dark, without knowing or remembering whether a train is due or not, and without looking out in both directions for trains that may be due, and without listening attentively and anxiously for the noise of machinery, as well as for the sound of bell or whistle, is gross negligence. A person so trespassing must guard, not only against negligence on the part of the railroad company, which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late.

Same. Recovery under Statute. -Apportionment. Under the Georgia statute giving a right to the recovery of partial damages from a railroad company where a person injured has been guilty of contributory negligence, the plaintiff in an action cannot recover if he has trespassed upon the track, and been grossly negligent in failing to anticipate and look out for the approach

of trains.

APPEAL from Superior Court, Clayton County.

Action to recover damages for personal injuries sustained by plaintiff while on defendant's railroad track. The opinion states the facts.

A. R. Lawton, John D. Stewart, W. L. Watterson, and John I. Hall for plaintiff in error.

Spence & Stewart, C. W. Hodnett, and R. T. Dorsey for defend

ant.

- –

BLECKLEY, C. J. Smith recovered against the Central Railroad Company heavy damages for a personal injury. The railroad company made a motion for a new trial, and it was overruled. One of the grounds of the motion was,

Facts.

that the judge instructed the jury that, if there was a failure to

34 A. & E. R. Cas. — 1.

I

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