Atlanta and Charlotte Air Line Ry. v. Ray

• Decision Date: 27 February 1883
• Citation: 70 Ga. 674
• Parties: ATLANTA AND CHARLOTTE AIR LINE RAILWAY v. RAY.
• Court: Georgia Supreme Court

70 Ga. 674

ATLANTA AND CHARLOTTE AIR LINE RAILWAY v. RAY.

Supreme Court of Georgia.

February 27, 1883

February Term, 1883.

[This case was brought forward from the last term, under § 1271(a) et seq. of the Code.]

1. The object of section 3938 of the Code in limiting the service of a juror to four weeks in any one year is two-fold: first, to equalize the burden of jury duty; and second, to avoid the evil of " professional jurors; " and it should be strictly and energetically enforced for those purposes.

( a. ) Although a juror may have served four weeks during a term of court which began in December, yet he would not thereby be disqualified from another week of service in the succeeding year, although at the same term, which continued into the new year. The prohibition is against service for more than four weeks in a year, which means a calendar year.

2. On the trial of an action for damages by an employé of a railroad against the company, based upon the insecure fastening of a stove in one of its cars, resulting in damage to the plaintiff, it was not error against the defendant to charge that it was not liable unless it " knew or should have had reason to know," that the stove was in an unsafe condition.

( a. ) The duty rested on the company to properly select and superintend its operatives, its machinery appliances and appointments of every sort used in its business. It was a guarantor that all reasonable and proper care had been and should be exercised in the performance of those duties, and its liabilities should be limited to a failure to meet its obligations in this respect.

3. If it was the duty of a flagman to make fires in the stove on one of the cars of a railroad company, which he did; and if there was a defect in the manner in which the stove was fastened, such as to make it unsafe to build a fire therein on account of the dangers incident to railroad travelling and this was such an open and patent defect as he could have easily seen, but on account of his own negligence he carelessly overlooked it and failed to report it that it might be remedied, then he was guilty of contributing, by his own negligence and carelessness, to the injury which he received, and was therefore not entitled to recover.

4. A flagman on a railroad whose place was in the rear car when in motion, but who had duties which, on occasion, might call him to other parts of the train, having brought suit against the railroad company for an injury received while he was in another portion of the train, resulting from the overturning of a stove in the car where he was, it was necessary for him to show affirmatively that, at the time he was hurt, his duty required him to be at the place where the injury occurred.

( a. ) That, by reason of the shock or the lapse of time, the plaintiff has lost the memory which would enable him to establish this fact, is his misfortune, but does not vary the law.

Railroads. Damages. Negligence. Master and Servant. Before Judge CLARK. City Court of Atlanta. December Term, 1881.

Reported in the decision.

HENRY HILLLER; L. J. WINN, for plaintiff in error.

HOPKINS & GLENN, for defendant.

CRAWFORD Justice.

Samuel C. Ray, the defendant in error, was employed as a flagman by the Atlanta and Charlotte Air Line Railroad Company, to run on its passenger train from Atlanta, Georgia, to Charlotte North Carolina, and back. Whilst so employed and engaged in its service, near Gaffney City, South Carolina, the train ran off, and the car in which he was riding was thrown down an embankment, and the stove, which had fire in it, turned over upon him, and he was severely injured.

He brought this suit to recover damages from the company, because of its negligence and carelessness in not having its stove in said car so securely fastened as to have prevented the injury which he received. He further alleged negligence in the company, in that it had a schedule for the train which was too fast for safety in the unsafe condition of its track, and that it was also otherwise negligent. The case, however, was tried upon the first ground only, and, saving a preliminary question, it is from that alone the exceptions spring which bring it up to this court.

1. The preliminary question arose in the selection of the jury to try the case. The defendant challenged one A. W. Hoffman, as being an incompetent juror, upon the ground that he had already served four weeks at the term of the court, and was therefore disqualified under section 3938 of the Code, which declares that no person shall be allowed to serve as a traverse juror longer than that time in any one year.

The record shows that the juror was in the fifth week of his service at that term, which began in the month of December of the preceding year, and had then reached into the month of January of the succeeding year. The judge refused to sustain the challenge, and allowed the juror to serve. The law is that no person shall be compelled to serve as a grand or petit juror more than four weeks in any one year. Nor shall he be allowed to serve as a petit juror in the superior courts, or as a tales juror in any criminal case, or on any jury in other courts, more than four weeks in any one year. The legislature, in passing this law, intended to lighten and equalize the burden of jury duty upon the citizens, in the first place, and therefore granted this exemption, after the full performance of the service required. In the next place, it intended to exclude those who sought such service, and were known to bench and bar as " " professional jurors," and who, from constant attendance upon the courts, had a pretty thorough knowledge of the important cases to be tried, and whose opinions, inclinations and prejudices were not unknown to others who had business and duties in the court. Hence this act was passed,...