Error
from superior court, Fulton county; M. J. CLARKE, Judge.
The
charges referred to in the opinion are as follows: "(6)
It is important, as you must perceive, to understand when, in
the sense of the law, a road-bed is in a defective condition.
It is in such condition when the road-bed is not reasonably
safe for the passage over it of the company's trains.
There is no obligation, however, on the company to have the
road-bed absolutely safe. Where the road-bed of a railroad is
in a reasonably safe condition, and therefore not defective
the company, of course, would not be responsible for any
injury which, notwithstanding, occurred to an employe from
the derailing of a train. (7) Where an employe of a railroad
company receives a personal injury while in the service of
such company, and contributes by his own negligence to such
injury, he cannot recover therefor. This would be true though
the company itself may have been negligent in the matter of
the injury. An employe is bound to conform to all reasonable
regulations of which he has notice, provided by his employer
for the government of his conduct in such employment or
business, and a failure to comply with such regulations would
be negligence; and, if such failure contributed to an injury
which said employe receives, he cannot maintain an action for
that injury. I shall have occasion presently to speak of
notice. (8) To speak of another matter, if an employe of a
railroad company enters into a contract, express or implied
with such company, that the compensation he is to receive as
such employe shall cover all risks incurred and liability to
accident from any cause what ever while in the service of the
company, he is bound by such contract, and if the company
complies with its obligation under the contract the employe
cannot recover for an injury arising from any cause whatever
in its service except criminal negligence. (9) An express
contract is one in which the parties reduce the contract to
words; an implied contract is one which the law infers from
the conduct of the parties. If an employe enters the service
of an employer, with the knowledge when he so enters that he
does so under certain regulations as to his rights prescribed
by the employer, the law implies an agreement on his part
that his rights shall be controlled by such regulations. If
these regulations are in the form of printed rules, and they
are delivered at the time of his employment to an employe who
can read, and who has such an opportunity to read them that
by ordinary diligence he could do so, the law will presume a
knowledge by him of such rules. If such rules are placed in
the hands of such employe after he has already entered the
service of the employer, and, according to the above
instructions, he either knows or must be presumed to know
them, and he afterwards continues in such service, the jury
may consider this fact in determining whether he assented to
such rules as a part of the agreement by which his rights
were to be governed. Such consent would be necessary in order
to bind the employe. (9 a) On the other hand, if you
should believe from the evidence that the plaintiff neither
made such an agreement before entering defendant's
service, nor consented afterwards to serve under such
agreement, you should, as to this plea, find for the
plaintiff. I have at another point in the charge explained to
you fully the law pertinent to this defense." The
verdict was for $16,044.
SIMMONS
J.
The
controlling question in this case is as to the proper
construction and effect of rule 23, which was relied upon by
the railroad company to discharge it from all liability to
the employe. That rule is as follows: "The conditions of
employment by the company are that the regular compensation
paid for the services of employes shall cover all risks
incurred, and liability to accident from any cause whatever
while in the service of this company. If an employe is
disabled by accident, or other cause, the right to claim
compensation for injuries will not be recognized. Allowance
when made in such cases, will be as a gratuity, justified by
the circumstances of the case and previous good conduct of
the party. The fact of remaining in the service of the
company will be considered acceptance of these conditions.
All officers employing men to work for this company will have
these conditions distinctly understood and agreed to by each
employe before he enters the service of the company." It
appears from the evidence that Dooley was employed as flagman
on the 21st of June, 1887, and then receipted for a copy of
the book of rules and regulations, which contained rule 23.
He was promoted from the position of flagman to that of
conductor, while he was in possession of the book of rules.
He was familiar with the rule which required employes to know
the rules and regulations. The accident happened on August
2d, and he had been in possession of the rule-book about 42
days. Under this state of facts, the able counsel for the
plaintiff in error insisted that, as Dooley had receipted for
the book of rules, and kept them in his possession up to the
time of the accident, and remained in the employment of the
company, he thereby assented to rule 23, and as matter of law
was bound by it, and that the court should have so charged,
instead of leaving it to the jury to say whether he assented
to the rule or not. Under the facts of this case we do not
think the court should have charged the jury that Dooley, on
account of this rule, could not recover. It will be seen that
the last clause of the rule is: "All officers employing
men to work for this company will have these conditions
distinctly understood and agreed to by each employe before he
enters the service of the company." It affirmatively
appears from the evidence that this clause of the rule was
not complied with by the officer of the company employing
Dooley. ...
