Binion v. Georgia Southern & F. Ry. Co.

• Decision Date: 01 July 1903
• Citation: 45 S.E. 276,118 Ga. 282
• Parties: BINION v. GEORGIA SOUTHERN & F. RY. CO.
• Court: Georgia Supreme Court

45 S.E. 276

118 Ga. 282

BINION v. GEORGIA SOUTHERN & F. RY. CO.

Supreme Court of Georgia

July 1, 1903

Syllabus by the Court.

1. In a suit for damages against a railroad company by one of its brakemen, where the defense relied upon by the company was that the plaintiff's injuries were caused by his disregard of a rule of the company of which he had notice and by which he was bound, and which required him to use a "stick" in making all couplings, evidence that the conductor in charge of the train at the time the injuries were received, and other conductors of the defendant company under whom the plaintiff worked, knew that he had no "stick," was properly excluded; there being nothing to impute such knowledge of the conductors to the defendant so as to give rise to the presumption that by acquiescence in the violation of the rule it had consented to its abrogation.

2. An assignment of error in a bill of exceptions, which complains that, "after the plaintiff had offered in evidence the rules of said company in reference to the conduct of the trains, and especially rule 164, plaintiff's attorney offered to prove by the plaintiff *** the same facts above set forth, which evidence was objected to by the defendant and which objection of the defendant was sustained by the court, and the evidence ruled out," does not specify the evidence which was rejected and the alleged error with sufficient definiteness to permit of a ruling by this court.

3. The rule laid down in Anderson v. Southern R. Co., 33 S.E. 644, 107 Ga. 501 (4), followed and applied, and held applicable to cases where the assignment of error is made for the first time in a bill of exceptions, as well as to cases where a motion for a new trial is first filed in the court below, and error assigned in this court on the overruling of the motion.

4. The charge requested, being too narrow, and not stating a correct principle of law applicable to the case under consideration, was properly refused.

Error from Superior Court, Dooly County; Z. A. Littlejohn, Judge.

Action by Frank Binion against the Georgia Southern & Florida Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Guerry & Hall and J. I. Hill, for plaintiff in error.

Hall & Wimberly and R. C. Jordan, for defendant in error.

CANDLER J.

Binion sued the railroad company for damages on account of personal injuries received while he was employed by it in the capacity of train hand, and while he was in the discharge of his duties couping cars on one of its freight trains. The company denied the allegations of negligence in the petition, and defended on the ground that the plaintiff's injuries were due to his own negligence in failing to comply with one of its rules requiring the use of a ""stick" in making couplings. The case has been tried three times. On the first trial the court directed a verdict for the defendant, and on writ of error to this court the judgment was reversed on the ground that the evidence raised issues which should have been submitted to the jury. 111 Ga. 878, 36 S.E. 938. The jury on the second trial returned a verdict for the plaintiff, which was set aside by the judge on motion for new trial, and his judgment was affirmed by this court. 115 Ga. 330, 41 S.E. 646. On the trial which is now under review the jury found for the defendant. The plaintiff did not file a motion for a new trial, but excepted directly to various rulings and charges of the trial court.

1. It was not denied by the plaintiff that the rules of the defendant company required the use of a stick by its employés in making couplings, nor that he failed to use a stick on the occasion when his injuries were received. He contended, however, that no stick had been furnished him; that the company had at least constructive notice that he had no stick; and that it was, therefore, estopped to complain of his failure to use one. In the bill of exceptions he assigns error upon the refusal of the trial court to allow him to testify "that at the time he wanted to make this coupling the conductor who had charge of said train knew that he had no stick, and that said conductor and the other conductor under whom he worked while employed on said road knew that he was coupling cars without a stick." There was nothing in the evidence to impute this knowledge of the conductors (granting that it existed) to the railroad company. It was not made to appear that the plaintiff's failure to observe the rule requiring the use of a stick was so well known by those having charge of the enforcement of the rule as to give rise to the presumption that by acquiescence in its violation the company had virtually abrogated it. It was not shown that the conductor was such a representative of the company in the enforcement of the rules governing its employés as that his knowledge of their disobedience of such rules was the knowledge of the company. That being true, the evidence offered was irrelevant, and was properly excluded. In the case of Sloan v. Railroad Co., 86 Ga. 15, 12 S.E. 179, which is almost identical in its facts with the present case, it was held: "It makes no difference that other employés frequently or customarily disregarded the rule, unless the company, with knowledge of their practice, acquiesced in it in a way to sanction it, or practically to abrogate the rule. Nothing less would relieve the plaintiff from abiding by his uniform orders." See, also, Binion v. Railroad Co., 115 Ga. 332, 41 S.E. 646.

2. The bill of exceptions further complains that, "after the plaintiff had offered in evidence the rules of said company in reference to the conduct of the trains, and especially rule 164, plaintiff's attorney offered to prove by the plaintiff, Frank Binion, the same facts as above set forth, which evidence was objected to by the defendant, and which objection of the defendant was sustained by the court, and the evidence ruled out." Just what were "the same facts as above set forth" we are left to conjecture. If reference is had to the evidence alluded to in the preceding assignment of error, which was passed upon in the first division of this opinion, it is not necessary to make a duplicate ruling thereon. If anything else was in the mind of the pleader, he failed to convey it to the minds of this court, and it is, of course, impossible for us to say that the court below erred in the ruling of which complaint is made.

3. Numerous assignments of error are made upon various portions of the charge of the court, the assignment in each case being in substantially the language of the first, which was as follows: "To which charge the plaintiff, Frank Binion then and there excepted, and now excepts, and assigns the same as error, and says that the court erred in charging the jury as set forth in the above and foregoing extract from the charge of the court." A careful examination of each extract from the charge excepted to discloses that it stated rules of law which were, in the abstract, entirely correct, and which have frequently been laid down and applied in adjudicated cases by this court. No effort was made to show wherein they were specifically erroneous or harmful in the case at bar. In Anderson v. Southern R. Co., 107 Ga. 501, 33 S.E. 644 (4), the rules governing such general assignments of error on portions of the charge of the court were plainly and definitely laid down. That case has been followed in many subsequent cases, and it would seem that there should not now be room to question the rule of practice which it announced. By leave of court counsel on both sides filed supplemental briefs on this question, and we have carefully examined the numerous authorities therein cited. There can be no question as to the "sufficiency" of these assignments of error as against a motion to dismiss. They are sufficient to bring in question the general, abstract correctness of the charges excepted to; and, if one of these charges is found to be an...