East Tennessee, V. & G. R. Co. v. Lewis

• Decision Date: 04 October 1890
• Citation: 14 S.W. 603
• Parties: EAST TENNESSEE, V. & G. R. CO. v. LEWIS.
• Court: Tennessee Supreme Court

14 S.W. 603

EAST TENNESSEE, V. & G. R. CO. v. LEWIS.

Supreme Court of Tennessee.

October 4, 1890.

Appeal from circuit court, Bradley county; ARTHUR TRAYNOR, Judge.

The verdict and judgment below were for the plaintiff, Lewis, from which the railroad company appealed.

Mayfield & Son and Maddox & Baxter, for appellant. John C. Ramsey, for appellee.

TURNEY, C. J.

This suit was brought to recover damages for injuries received by an employe in Georgia. The Georgia law governs. There is in the transcript evidence tending to show negligence on the part of the defendant in and at the time of the injury. The court charged the jury: "If the defendant's negligence was the direct or proximate cause of the injury, the plaintiff can recover, even though the plaintiff may have been at fault, if his fault was less in degree that that of defendant," etc. This was error. The rule, as laid down in Railroad, etc., Co. v. Kenney, 58 Ga. 485, is, "to make a prima facie case for recovery, a railroad employe suing the company for a physical injury resulting from an act in which he participated must prove either that he was not to blame or that the company was. The latter, in reply, may defend successfully by disproving either proposition; that is, by showing that the plaintiff was to blame, or that the company was not. If both were to blame, or if neither was, the plaintiff cannot recover." The court should have so charged. The rule in Tennessee is not applicable to the case. Reverse and remand.