Atl. Coast Line R. Co v. O'neill

• Decision Date: 16 February 1907
• Parties: ATLANTIC COAST LINE R. CO. v. O'NEILL.
• Court: Georgia Supreme Court

127 Ga. 685

56 S.E. 986

ATLANTIC COAST LINE R. CO.

v.O'NEILL.

Supreme Court of Georgia.

Feb. 16, 1907.

1. Railroads — Injury to Licensee — Petition.

The objections to the petition urged in the special demurrer were fully met by the amendments, and as against the general demurrer the petition set forth a cause of action.

2. Trial—Evidence—Weight of Evidence-Instructions.

When the evidence is conflicting as to whether a particular thing did or did not occur, and the trial judge instructs the jury that the existence of a fact testified to by one positive witness is rather to be believed than that such fact did not exist because many witnesses who had the same opportunity of observation swear that they did not see or know of its having transpired, he should also give instructions to the effect that in weighing the testimony of the witnesses the jury should pass upon their credibility.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial.. §§ 490-502.]

3. Negligence—Acts of Person in Danger.

The instructions of the judge other than that dealt with in the preceding note, which were the subject of assignments of error, were not erroneous for any reason assigned. (Syllabus by the Court)

Error from Superior Court, Berrien County; R. G. Mitchell, Judge.

Action by L. H. O'Neill against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

O'Neill sued the railroad company In the city court of Tifton, alleging: He was the superintendent of a lumber company, which on the date named operated in Tifton, on the north side of the defendant's track, a planing mill. Between the "planing mill and dry kiln, and a timber-dressing plant and skids connected therewith, " there was a side track. The track was within four or five feet of these structures. When cars loaded with lumber or timber were brought to Tifton over the road of defendant for the lumber company, they were brought by the switch engine into the side track, and placed at such points "as were directed by plaintiff"; it being his duty to direct the employes of defendant as to the points where such cars should be placed for convenience In loading and unloading. On the day named the switch engine brought into the side track three flat cars loaded with rough lumber, and came to a standstill when the first car reached a point opposite the planing mill, awaiting instructions of the plaintiff as to where the cars should be placed. A few feet west of the west car two flat cars stood on the side track, loaded with dressed lumber, and within a few inches of each other, uncoupled. Upon one of these cars (the furthest from the switch engine) stood the defendant's yard-master, who, for the defendant, superintended the placing of cars when directions had been given in regard thereto by the plaintiff. While the car last mentioned was standing still, plaintiff, at the invitation of the yard-master, who was on said car, went upon it for the purpose of directing him as to the point where the three cars of rough lumber should be placed. While standing upon the car with the yardmaster and directing him as to the points where the cars should be placed, the switch engineer, knowing plaintiff's position upon the car, without any necessity therefor, and without warning, suddenly and violently put the engine and cars in motion, thereby striking the car next to the one upon which plaintiff was standing, which in turn struck the car upon which plaintiff and the yardmaster were standing a violent blow, precipitating the car along the siding and down a steep grade, about three car lengths, where it came in contact with other cars standing on the siding. When the car upon which plaintiff was standing came in contact with the other cars, it came violently and suddenly to a stop, and that part of the lumber upon which his left foot rested was precipitated suddenly forward, while that part upon which his right foot rested remained stationary. His left foot and leg were thus carried forward suddenly and violently, and his left knee joint was twisted and dislocated, and the tendons and muscles of his knee and leg were strained and ruptured. The Injury is permanent, and by reason thereof his earning capacity has been permanently impaired to the extent of three-fourths. As a result of said injury he has suffered and will always suffer great mental and physical pain. The Injury was not due to any fault on his part, nor was it inflicted with his consent. It occurred while he was in the exercise of ordinary and reasonable care and diligence, looking to his own safety, and was occasioned solely by the negligence and carelessness of the switch engineer of the defendant in striking the car upon which the plaintiff was standing in the manner described. At the time of the injury plaintiff was 53 years old, in sound health, capable of earning by his labor, largely physical, $125 per month; and his earning capacity would have increased during the remainder of his life, had it not been for such injury. At the time of the injury he had a reasonable expectancy of 20 years. Damages are laid in the sum of $15,000, and process is prayed.

To this petition the defendant filed a general demurrer, and also a special demurrer, upon the grounds that the petition falls to set forth the injury alleged, or what muscles or tendons were ruptured and strained, or what was the particular character of the injury alleged to have been permanent, or the...