The Cent. R.R. v. Debray

Citation71 Ga. 406
PartiesThe Central Railroad. vs. DeBray, and vice versa.
Decision Date30 September 1883
CourtSupreme Court of Georgia

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Railroads. Damages. Negligence. Master an.. Servant. Venue. Witness. Evidence. Charge of Court. Before Judge Branham. Pike Superior Court. October Term, 1882.

DeBray brought suit against the Central Railroad on account of an injury which happened to him while employed by defendant as an extra train-hand. The facts are sufficiently stated in the first division of the decision. The jury found for the plaintiff $4,700.00. Defendant moved for a new trial, on the following among other grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the evidence failed to make out the case of the plaintiff as alleged in his declaration.

(3.) Because the court ruled out a portion of the answer of W. A. Tinsley to the third direct interrogatory, as follows: " And any person with ordinary care could have gotten off over the skids where plaintiff did without being hurt."

(4.) Because the court ruled out a portion of the answer of W. A. Tinsley to the eleventh cross-interrogatory, asfollows: [The witness testified that it was usual for a brakeman to jump off a moving train to couple cars, when told to couple, and then added the sentence ruled out]" but he does it at his own risk and the risk of his life."

(5.) Because the court ruled out a portion of an answer of R. Schmidt to a cross-interrogatory, as follows: "He does so at his own risk, " [that is, gets off a moving train, if so ordered by the conductor.]

(6.) Because the court ruled out a portion of an answer of R. Schmidt to a cross-interrogatory, as follows: " A person using ordinary care can pass over them (referring to skids lying between the track) with perfect safety. It is true that a person can, with ordinary care, get off or on a moving train passing over such skids with perfect safety. It is habitually done."

(7.) Because the court erred in ruling and deciding as follows: A. J. White, a witness for defendant, stated that he was president of the Macon & Western railroad for about nine years, commencing in 1865, and while he was president he made and had printed about one-third of the rule-book that was put in evidence by the plaintiff, the balance of the book being made since he went out of office (which rule-book plaintiff proved by R. Schmidt was in force at the time plaintiff was injured). This rule book does not contain all of the orders and instructions that are given to employes, but certain general rules for their guidance. Defendant then proposed to prove by White that no conductor or other officer had the right to order an employe to get off or on a moving train, and if such order was given, the employe" could not be required to obey it. —The court ruled that, as the witness did not know what the rules were at the time of the accident, and proposed to testify what they were at the time he was in office, he could not do so, and rejected the evidence.

(8.) Because the court erred in ruling and deciding as follows: Defendant proved by A. J. White that he was an expert in all the departments of railroading, and then pro_posed to prove by him that no employe was required to get off or on a moving train, and that neither the conductor nor any other person could require him to do so, and if such order were given, the employe would not be required to obey it. —This proposed proof was rejected by the court.

(9.) Because the court erred in ruling and holding as follows: A. J. White testified that the lantern plaintiff used was furnished him that he might see how to perform his duties with safety to himself; that he knew the character of the lantern. Defendant then offered to prove by the same witness that a person in getting off a train could, by the light of the lantern, readily see any object near the track; which proposed proof the court rejected.

(10.) Because the verdict is excessive, it being for an amount much larger than the plaintiff would be entitled to recover under the evidence.

(11.) Because the verdict is contrary to the following charge of the court: "If you believe from the evidence that plaintiff got off the car in a careless manner that was calculated to throw him to the ground, and if the manner of getting off contributed to his fall, he cannot recover."

(12.) Because the verdict is contrary to the following charge of the court: "If you believe from the evidence that plaintiff could have remained on the train until it was stopped, and if you believe he got off while the train was in motion, and if you believe that such act was at his own risk, then he cannot recover."

(13.) Because the verdict is contrary to the charge of the court: " If you believe from the evidence that the plaintiff knew the cab on which he was would stop near where he had to do his work, and if you believe plaintiff could have got off at such a place with perfect safety, and if you believe plaintiff got off before the cab reached that place, and while the car was in motion, and if you believe from the evidence that plaintiff took the risk of getting off the moving train, then he cannot recover, nomatter how you construe the direction given the plaintiff by the conductor."

(14.) Because the verdict is contrary to the following charge of the court: " If you believe from the evidence that the manner of getting off the train contributed in any way to his injury, then plaintiff cannot recover."

(15.) Because the verdict is contrary to the following charge of the court: " If you believe from the evidence that plaintiff was furnished with a lantern for the purpose of enabling him to perform his duties; that it was his duty to use the care of a prudent man in trying to discover whether or not there were obstructions near the track, and if you believe from the evidence that the plaintiff, by a prudent use of his lantern, could have discovered and avoided the obstructions, and if he failed to use his lantern with the care of a prudent man, then he cannot recover."

(16.) Because the court refused to charge the following request: " If plaintiff contributed, either immediately or remotely, directly or indirectly, to his injury, then he cannot recover, regardless of the position of the skids or any other negligence of defendant's agents."

(17.) Because the court refused the following request: " And although you may believe that the plaintiff was directed by the conductor to get off at the place where he left the car. while the car was in motion, he cannot plead the order of the conductor as an excuse for the act, if the act was one attended with danger and the doing the act put him in fault. The order of a superior could not protect him."

(18.) Because the court refused the following request " It would be the duty of an employe connected with the running of a freight train to know what tools, implements, or appliances are used in conducting the business of handling freights, and where such tools, implements or appliances are kept; if kept at any particular place, or at or about any particular locality, and if plaintiff was a train-hand on defendant's train, and if the defendant hadkept short skids for their use and kept them at or near a certain place, it was the duty of the plaintiff to look for them, and he would be charged with a knowledge of their presence at such a place."

(19.) Because the court refused to charge the following request: " If to do the freight business it was necessary to keep a pair of short skids for the use of the hands employed to handle the freight, and if it was necessary for the proper handling of freight to keep the skids between the main and side tracks, then if the skids were kept for such purpose and in a usual and customary place, plaintiff cannot recover."

(20.) Because the court refused to charge as follows: " If, among different modes of performing his duty, some of which were safe, the plaintiff chose one less safe or more dangerous, he took the risk of his choice, although other servants did likewise; and if you so believe, plaintiff cannot recover." But the court modified the request as follows: " If among different modes of performing his duty, some of which were safe, the plaintiff chose one less safe or more dangerous, then you will take this circumstance into consideration with all the other facts in the case, in deciding whether the plaintiff was at fault or not. It is for you to determine from the evidence whether plaintiff took the risk in getting off."

(21.) Because the court refused to instruct the jury as follows: "If you believe from the evidence that skids were kept between the main and side tracks before and at the time plaintiff was employed by the defendant, and if you believe they were necessary in order to perform the work of discharging or receiving freight, then plaintiff assumed the risk of the premises as he found them."

(22.) Because the court instructed the jury as follows: " If you believe from the evidence that skids or planks were placed on or near the track of defendant's road where the injury complained of occurred, and that such planks or skids occasioned said injury to the plaintiff while per-forming his duties in obedience to orders and without fault or neglect on his part, then I charge you the defendant would be liable."

(23.) Because the court charged as follows: " If the conductor directed the plaintiff to get off the train while it was in motion, and he got off while in the performance of his duty as he was directed to do, then the defendant is estopped to deny the plaintiff's right to get off, and cannot set up as a part of his defence the claim that plaintiff was not bound to obey the conductor's orders."

(24.) Because the court charged as follows: "If it appears from the plaintiff's evidence that defendant was negligent, the onus is on the defendant to show that the plaintiff is also at fault, in order to defeat a recovery."

(25.) Becaus...

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