The plaintiff testified as follows: "As the railroad track crosses on 19th Street, it is on a deep curve and continues that curve, I would say to 18th Street. . . On the right, or west, is Railroad Avenue, a roadway. . . The roadway is adjacent to the track and is between the railroad and the negro houses on the west side. . . I was on my way to Mr. Crouch's. It was very dark. Before I got directly in front of Mr. Crouch's I made an angle turn to my left. . . I then walked toward the track. It was very dark and it was rough. The crossing extended over the rails — over the dirt. . . As I started across the track I was looking directly down to the ground trying to make my way across the way without stumbling. I remember stepping on the track. Prior to that time I did not hear any locomotive engine bell rung, nor did I hear any locomotive whistle of any nature sound. I did not see any lights of any kind on that track as I stepped upon it and started across. . . As the train approaches this place where I attempted to cross, the lights of the locomotive shine on the negro houses to the right and on the west. On the night I was hurt I did not see the light. The track was very dark. As I started on the track I did not know a train was approaching. Nothing had happened, such as noise, lights, whistles, bells, or anything of that nature, to make me believe that a train was there, until the instant when I knew I was in danger. I was struck as I attempted to whirl off. . . I walked down four feet from the track. The train was going south in the same direction I was going. There is nothing wrong with my hearing that I know of. There is nothing wrong with my sight. . . I did not look to see if the train was coming. I had no occasion to look. I never *Page 77 looked down the track this way to see if the train was coming. I did not hear a train. It was around eight o'clock at night. It was very dark. . . The lights from the engine were deflected on the houses on the west. . . Four feet from the track, I think I was in a place of safety. If at that point I had looked back I could have seen the headlight of a train rounding the curve for a distance I would say of fifty or sixty feet. I don't think I could have seen it north of 19th Street."
The statement of the plaintiff that he went "blindly on the track in front of the train" which he knew would likely come along, is no more than a statement that he went onto the track without looking when he knew that a train might come along. He did not say that he knew that the train was at the time approaching. He said that he did not know that a train was at the time approaching. He also stated that he did not know that a train passed along there about that time.
There was evidence that the train was coasting and came down upon the plaintiff noiselessly and that he did not hear it. From the testimony of the plaintiff and the fireman of the train it appears that where the plaintiff attempted to cross the tracks was a place where people were accustomed to cross the tracks of the railroad from Railroad Avenue over to their homes on the other side of the tracks, and that on the occasion of the plaintiff's injury the fireman knew of this custom. There was evidence that the train was running from 25 to 35 miles an hour when it approached. The place where the plaintiff was struck by the train was within the city limits of Columbus and within a populous community. While the engineer in his testimony does not seem to concede that people crossed the track at this place, stating he had never seen them cross there, it is clearly inferable that from the physical condition of the houses being on both sides, and it being a fact that people were accustomed to cross, as appears from the testimony of the fireman, the engineer knew or had reason to know that people had been and were in the habit of crossing at this place. The fireman knew this.
The jury was authorized to find that the plaintiff crossed the track at a well-used crossing in a populous locality, where people were in the habit of crossing with the knowledge of the operators of the defendants' train, and that the defendants were guilty of *Page 78 negligence in the operation of the train at the time and place.Georgia Railroad c. Co. v. Cromer, 106 Ga. 296 (31 S.E. 759); Crawford v. Southern Ry. Co., 106 Ga. 870 (33 S.E. 826); and see my dissenting opinion in Lassiter v. A. W. P.R. Co., 61 Ga. App. 23 (5 S.E.2d 603). The jury was authorized to find that the negligence of the defendants was the proximate cause of the plaintiff's injuries, unless it appears as a matter of law from the evidence that the plaintiff's injuries were proximately caused by his own negligence and not by the negligence of the railroad company.
There is no law of stop, look, and listen prevailing in this State with regard to a place where people are accustomed to cross railroad tracks with the knowledge of the railroad company. Under the Georgia law, as I construe it, there is no duty as a matter of law resting upon a person crossing a railroad track, whether at a public crossing or at a private crossing, or at a crossing at which people are accustomed to cross with knowledge of the railroad company, to stop, look, and listen. This court held, inVaughn v. Louisville Nashville R. Co., 53 Ga. App. 135 (185 S.E. 145), that "A person who, in walking across a railroad track along a pathway which is customarily used by the public at all hours of the day with knowledge of the railroad company, does not see and is not aware of an approaching train on the track because his back is turned towards the train and is oblivious of the movements of the train because the train is rolling and making very little noise and no warning is given by those operating the train of the train's approach, is not as a matter of law guilty of negligence which would bar a recovery in damages for injuries received by him by being hit by an approaching train," citing cases. In Southern Ry. Co. v. Slaton, 41 Ga. App. 759 (3) (154 S.E. 718), where the injury was at a private way maintained by the railroad company, it was held: "It is true that the Supreme Court has held that the court might properly charge the jury that `the precise thing which every person is bound to do before stepping upon a railroad track, is that which every prudent man would do under like circumstances,' and that`if prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means.' . . But this is an entirely different thing from the court undertaking to decide for itself, and as a matter of law, what such a person lawfully *Page 79 entering upon a public or private railroad crossing must or must not do in order to free himself of a guilt of a lack of ordinary care constituting the proximate cause of his injury. On the contrary, it has been many times ruled that such a question is one to be determined by the jury as a question of fact, rather than by the court as a matter of law. This long line of decisions, contrary to the rule in some jurisdictions, is to the effect that is can not be said as a matter of law, that the failure on the part of a person approaching and entering upon a railroad crossing, and unaware of the approach of a train, to stop, look, or listen, renders such person guilty of a lack of ordinary care such as would prevent recovery except in cases of wilful and wanton misconduct on the part of the defendant company," citing cases. See W. A. Railroad Co. v. Ferguson,113 Ga. 708 (supra).
The jury was authorized to find that the operators of the train did not blow any whistle or ring any bell, that the train was, in the nighttime, approaching the crossing which was in a city and at a populous section, at a speed of 25 to 35 miles an hour, that with the knowledge of the agents of the defendant railroad company operating the train it was customary for people to cross the tracks at this point, that the engineer failed to keep a lookout, and that these acts constituted negligence. The jury was also authorized to find that the plaintiff was unaware of the approach of the train, which approached noiselessly, and that in going upon the track, under the circumstances, without looking, the plaintiff was not guilty of negligence barring a recovery.
I can not concur in the proposition that it appears as a matter of law that the plaintiff's negligence was the proximate cause of his injury. I think it was a jury question whether the plaintiff's negligence or that of the defendants was the proximate cause of his injuries, or whether the doctrine of comparative negligence would operate in reduction of the amount of recovery.