Central R.R. v. Gleason

• Citation: 69 Ga. 200
• Court: Supreme Court of Georgia
• Decision Date: 30 January 1883
• Parties: THE CENTRAL RAILROAD v. GLEASON & HARMON.

69 Ga. 200

THE CENTRAL RAILROAD v. GLEASON & HARMON.

Supreme Court of Georgia.

January 30, 1883

September Term, 1882.

1. Where a railroad company had a cotton yard which had been planked over for public use in the removal of cotton, it was the duty of the company to keep such yard and flooring in good order for that purpose, to the extent and limit of such use; and if it be made to appear that damage to property has been occasioned by the negligence of the company in not keeping such yard in repair, so as to be safely used by those engaged in the removal of cotton therefrom, the company would be liable, unless its agents exercised all ordinary and reasonable care and diligence to prevent such damage. If both the company and the property owner, or his agent, were at fault, the doctrine of apportionment of damages would apply.

( a. ) If the company did keep the yard in proper repair for the purpose of hauling, and the damage occurred by reason of the property owner, or his agent undertaking to use a part of the yard not designed for that purpose, or arose from want of ordinary care to avoid the injury, either in the manner of driving or in his conduct at the time of the injury, there could be no recovery

( b. ) The charge of the court in regard to contributory negligence was right as far as it went; but after stating the liability of the company, he should have added that it existed unless the agents had exercised all ordinary and reasonable care and diligence to prevent the injury

2. One issue being whether the cotton yard was negligently out of repair, there was no error in allowing evidence of repairs which were made at the place where the injury occurred although made after it happened. Whether they should have been made before or were rendered necessary by the accident was a question for the jury.

3. The judge of the city court of Savannah has power to hear and determine all civil cases of which said court has jurisdiction without a jury, where no jury is demanded, but it is not obligatory upon him to do so.

Railroads. Damages. Negligence. Actions. Charge of Court. Evidence. Savannah. Before Judge HARDEN. City Court of Savannah. February Term, 1882.

Reported in the decision.

H. C CUNNINGHAM; A. R. LAWTON, Jr., for plaintiff in error.

CHARLTON & MACKALL; N. C. COLLIER, for defendants.

CRAWFORD Justice.

This suit was brought to recover damages for the loss of a mule killed in the cotton yard of the Central Railroad and Banking Company, through the alleged negligence of said company. On the trial the jury returned a verdict for the plaintiff for the sum of one hundred and sixty dollars. A motion was made for a new trial on the several grounds set out therein, which was refused by the court, and the defendant excepted.

The damage sustained by the plaintiff below, as stated, occurred in the cotton yard of the Central Railroad Company in the city of Savannah. Drays are used to remove the cotton from this yard, and that they may move about in the same easily it is covered with planking. There are five tracks running through it, and are known as A, B, C, D, and E, and all of which except E. are covered. On the day the injury complained of occurred, plaintiff's driver loaded his dray immediately north of D track, where there is usually an open passage-way out, but on account of other drays blocking this way, he drove across D, and the two right wheels of his dray went off the planking just by E track. That the wheels might rise again upon the planking, he whipped the mules to make them pull; it was just after a rain; the planks were wet and slippery, and one of the mules slipped and fell, catching one of his feet in the open space between the iron rail of the track and the planking which seems to have been left for the flange of the car wheels. In the effort to extricate the foot caught, he unfortunately got in another, and whilst aid was being rendered to relieve him, he broke it, and soon afterwards died.

The testimony further shows that the part unplanked is not intended for the passage of drays, that the planking is not as close to the rails at the point where the injury occurred as at others; that by reason of the dampness there, repairing has to be done oftener, and that the plank was much worn, though it appeared to be new. The foregoing constitute the material facts shown by the proof.

(1.) The first ground of the motion for a new trial was because the court refused to charge as requested by the defendant: " If you find that the plaintiffs and defendant were both at fault in this case, however negligent the defendant may have been, yet if the negligence of the plaintiffs or their agents contributed to the injury, they are without remedy, and you must find for the defendant."

(2.) The second was because the court erred in charging the jury " If you find that both the plaintiffs and defendant are at fault, then you are to consider the circumstances of the case, and apportion the loss between them, according to the amount of negligence attributable to each, and in proportion thereto. The rule of the common law was that if the negligence of the plaintiff contributed to...