MANDAMUS AGAINST CORPORATION DEFENSES.-In a proper case for a mandamus to compel a corporation to perform duties imposed upon it by its charter, it cannot defend on the grounds that it is without funds, and that the performance of such duties would be unremunerative. Although want of funds may be a defense to the infliction of punishment for disobedience of the writ, it is not conclusive ground against its issuance. If the performance of the duties imposed upon the corporation are no longer desirable or remunerative it should surrender its charter.

Lawton & Cunningham and T. M. Cunningham, Jr., for the plaintiff in error.

W. C. Hartridge, for the defendant in error.

400 LUMPKIN, J. 1. The sixteenth section of the charter of the Savannah, Ogeechee, and Altamaha Canal Company (Dawson's Compilation, 97) declares, “that the said corporation shall be obliged to keep the said canals and locks in good and sufficient order, condition, and repair, and at all times free and open to the navigation of boats, rafts, and other water crafts; and for the transportation of goods, merchandise, and produce," etc. Counsel on both sides referred us to the above charter as that of the plaintiff in error, which is designated in the record as the "Savannah and Ogeechee Canal Co.," and is also 401 thus designated in the case of State v. Savannah etc. Canal Co., 26 Ga. 665. We therefore presume, without investigation, that the corporate name of this company was at some time properly amended by striking out "Altamaha" and placing "and" before "Ogeechee." It is apparent, without argument, that under this charter it is the imperative duty of this company to keep its canal in a navigable condition, and according to the principle of the ruling of this court in the case above cited the performance of this duty may be enforced by mandamus.

2. It appears from the record that the defendant in error is engaged in the lumber business, and for several years had used the canal in question for transporting timber and other things, and that because of its unnavigable condition he was compelled to ship his timber by a more circuitous and expensive route. It is clear, therefore, that he is specially interested in the navigation for which this canal was chartered, and that by the failure of the company to keep the canal navigable he sustains a special damage in which the general public does not share. Under these circumstances he was, in our opinion, entitled to the writ of mandamus to

compel a performance by the company of the duty above mentioned. There may be authorities to the contrary, but the true law of this question seems to be in favor of the doctrine that a private person may, by mandamus, enforce the performance by a corporation of a public duty as to matters in which he has a special interest: See 2 Morawetz on Private Corporations, sec. 1132; 4 Am. & Eng. Ency. of Law, 289, 291, and cases cited. In the case of State v. Savannah etc. Canal Co., 26 Ga. 665, the relief sought was granted at the instance of private persons, but it does not appear that the point was specially made as to their right, as such, to apply for the writ of mandamus, the position 402 then taken by the canal company being that this writ would not lie at

all.

3. In Moody v. Fleming, 4 Ga. 115, 48 Am. Dec. 210, this court held that, except in a case of clear legal right, the writ of mandamus was a discretionary remedy. This view was followed in Harwell v. Armstrong, 11 Ga. 328, and in Loyless v. Howell, 15 Ga. 554, injunction cases, in which this court, by citing the case first above mentioned, evidently intended to put cases of mandamus and of injunction upon the same footing as to the question of discretion. The granting or refusing of injunctions has always been regarded as discretionary, and it seems quite clear that in cases of manda mus it lies very largely within the discretion of the presiding judge as to whether or not the writ will, in a given case, be made absolute; and, in order to reverse a judgment in a case of this kind, it would be necessary to show that the discretion of the court was abused.

In the present case the corporation answered that it had no funds, nor any means of obtaining such; and also that it would not be profitable to operate the canal if it were put in navigable condition. For the purposes of the decision be low this answer was taken as true, the question of its sufficiency being raised by demurrer.

So long as the corporation retains its franchise it will not be allowed to urge as an excuse for failing to perform any duty required of it by its charter, that the same would be unprofitable. It cannot consistently keep the franchise and refuse to perform the duties incident thereto, for the mere reason that such performance would be unremunerative. If the rights, privileges, and franchises granted by the charter are, in connection with the corresponding duties thereby im

posed, no longer desirable, the company should simply surrender the charter.

As to the validity of the other reason alleged for 403 failing to put the canal in a navigable condition, viz., that the company is without funds, and without means of obtaining funds, the question is by no means so clear. The writer was inclined to hold that, under section 3200 of the code (providing that mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless), the answer of the company presented a good reason for refusing in this case to make the writ absolute. After some reflection, however, I have yielded to the better judgment of my brethren, and concluded to agree with them in bolding that the entire matter may be safely left to the discretion of the circuit judge. While it is quite certain that if the company has no funds now, nor any means of obtaining them, and remains permanently in this condition, compliance with the judge's final order will be impossible, so far as the corporation itself is concerned, there may be a change in the present condition of things, and the officers of the company may be able to find some way to raise money in order to obey the mandate of the court. At any rate, they should make a bona fide effort to do so. If, because of the want of means, they cannot comply with the writ, and if, after due diligence, they remain unable to procure the necessary means for this purpose, and make these things appear to the court in any proceeding for contempt which may be instituted against them, we apprehend the presiding judge would take great care to see that no injustice or hardship was imposed upon them, and certainly would not inflict punishment for a failure to do a thing impossible of accomplishment. This matter is not now directly before us, and we leave the question thus raised to be dealt with by the judge of the court below when it arises, if it ever does.

Judgment affirmed.

MANDAMUS AGAINST CORPORATIONS TO COMPEL PERFORMANCE OF PUB. LIC DUTIES.-Mandamus lies to compel a street railroad company to perform the duty which it owes to the public to operate its road in accordance with the provisions of the law under which the road was constructed: City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609; 37 Am. St. Rep. 312, and extended note.

MANDAMUS BY PRIVATE INDIVIDUAL TO COMPEL PERFORMANCE OF PUBLIC DUTY: See the extended note to Crane v. Chicago etc. Ry. Co., 7 Am. St.. Rep. 484.

MANDAMUS-DISCRETIONARY WRIT.-Mandamus is not a writ of right, and is not granted as of course, but only at the discretion of the court to which the application is made: State v. Graves, 19 Md. 351; 81 Am. Dec. 639; Dane v. Derby, 54 Me. 95; 89 Am. Dec. 722, and extended note. To the same effect: City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609; 37 Am. St. Rep. 312 See, also, the extended note to Freon v. Carriage Co., 51 Am. Rep. 798.

ATLANTA AND CHARLOTTE AIR-LINE RAILWAY COMPANY V. LEACH.

[91 GEORGIA, 419.]

RAILROAD COMPANIES-NEGLIGENCE LIABILITY FOR DEATH OF TRESPASSER. — A railway company exercising due diligence and care is not liable for running over and killing a trespasser upon one of its trestles who, through gross negligence, voluntarily places himself in a danger which he could have avoided in the exercise of ordinary care and prudence. The fact that the person so killed voluntarily encumbered himself with the care of a child and lost his life in protecting it does not render the company liable for his death, provided he could have saved his life in the exercise of ordinary care, if not so encumbered at the time of the accident.

Jacksons, Barrow & Thomas, S. C. Dunlap, and W. F. Findley, for the plaintiff in error.

M. L. Smith, J. B. Estes, and H. H. Dean, for the defendant in error.

420 LUMPKIN, J. 1. It is the grossest kind of negligence to walk upon a long and very high trestle of a railroad over which trains are constantly passing. The exercise of ordinary care and prudence would have prevented the plaintiff's husband from exposing himself to danger by going upon the trestle, and even after he went upon it he might, after becoming aware of the approaching train, have saved himself if he had not encumbered himself with the care of a small boy. The evidence shows that the company's servants did all in their power to stop the train after seeing the man and boy on the trestle, and strongly tends to show these servants, the engineer and fireman, saw the persons on the track as soon as it was possible for them to do so. If they were guilty of 431 any negligence at all, it was in failing to see these parties sooner, and this failure would not, under the circumstances, make the company liable. Not only was there a complete absence of wantonness or recklessness, but the negligence, if any, was slight, and the person killed be

ing a mere trespasser, the company, by its servants, exercised all the diligence to which he was entitled.

2. Whatever may be the law with reference to the liability of a railroad company for injuring or killing one who exposes himself to risk and danger by attempting to rescue another in a perilous situation which he had nothing to do with bringing about, certainly when one directly and by his own negligence causes the peril to exist, and because of it exposes himself to danger, he has, as against the company, no excuse for so doing. If so, it would be, in a certain sense, allowing him to take advantage of his own wrong. If a man were to load himself down with chains which could not be speedily removed, or in any other way fetter his movements, and in this condition attempt to walk over a trestle, no one will contend that because of these impediments to progress a railroad company would be liable for running over him on the trestle, when without them he might easily have escaped from the approaching train. So far as the company is concerned it would be entirely immaterial how the man encumbered himself, when but for the encumbrance, whatever its nature, there would have been no injury, and consequently no liability. The plaintiff's husband was doubtless under the strongest obligations, both of humanity and duty, to do all in his power, even at the risk of his own life, to save the unfortunate child he had so heedlessly carried into this most dangerous place, and the proof shows with almost absolute certainty that he actually lost his life because of his unavailing efforts to 422 get the child over the trestle before the train struck them. In making these efforts, however he was neglecting his own safety, and thus violating his duty to the company. He had the choice of two fearful alternatives, and he undertook, as was creditable of him, to perform the duty he owed the child; but it must not be overlooked that he himself was responsible for the situation that forced this awful alternative upon him. He had no right to go upon the trestle at all, and in no event could he voluntarily encumber himself in any manner, and then rely upon the encumbrance as an excuse for not escaping. Of course, the plaintiff, his widow, can have no better right against the company than he would have had he been only injured and was suing for the injury.

3. Under the facts of this case she was not entitled to reHer husband's death was due to his own utter want

cover.