130 U.S. 649 (1889), Dunlap v. Northeastern R. Co.

Citation:130 U.S. 649, 9 S.Ct. 647, 32 L.Ed. 1058
Case Date:May 13, 1889
Court:United States Supreme Court

Page 649

130 U.S. 649 (1889)

9 S.Ct. 647, 32 L.Ed. 1058




United States Supreme Court.

May 13, 1889

Error to the Circuit Court of the United States for the Northern District of Georgia.

This is an action on the case brought by Dunlap against the Northeastern Railroad Company to recover for injuries received during the month of August, 1882, by reason of a train belonging to defendant leaving the track while Dunlap was acting as engineer. The Code of Georgia (1882, pp. 509, 762) provides as follows: 'Sec. 2083. Liability of Railroad Companies as Carriers. Railroad companies are common carriers, and liable as such. As such companies necessarily have many employés who cannot possibly control those who should exercise care and diligence in the running of trains, such companies shall be liable to such employés as to passengers for injuries received from the want of such care and diligence.' 'Sec. 3036. Injury by Co-Employé. If the person injured is himself an employé of the company, and the damage was caused by another employé, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to recovery.' It was contended on behalf of the plaintiff that the accident happened in consequence of the road-bed being defective to such an extent and under such circumstances as to render defendant liable; while defendant claimed that plaintiff was guilty of contributory negligence, because he was running faster than 20 miles an hour, the superintendent having instructed him not to exceed that speed; because he made use of intoxicating drinks while on duty; and because the rules of the company limited speed to 10 miles an hour before crossing trestles and bridges, while the place of the accident was near a trestle, and plaintiff was running at a greater rate than 10 miles an hour. Evidence was adduced tending to sustain plaintiff's contention, and to refute that of defendant, as to a rate of speed exceeding 20 miles an hour, and the use of intoxicating liquors; and also to show that plaintiff was a locomotive engineer in the employment of the Richmond & Danville Railroad, and during the month of August, 1882, was sent to relieve an engineer on the Northeastern Railroad; that he relieved him on Saturday, on which day he hauled dirt, and that on Saturday evening he went to Tallulah Falls, and got his train conductor, and...

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