Augusta & K.R. Co. v. Killian
| Decision Date | 22 November 1887 |
| Parties | AUGUSTA & K. R. Co. v. KILLIAN. v. AUGUSTA & K. R. Co. |
| Court | Georgia Supreme Court |
Error from superior court, Richmond county; RONEY, Judge.
Jos. Sanahl and J. B. Cumming, for plaintiff in error.
J. S. & W. T. Davidson, contra.
Catherine E. Killian brought suit against the Augusta & Knoxville Railroad Company for damages. She alleged that her husband John H. Killian, was an employe of the defendant, and while engaged in the performance of his duties as such, without any fault or negligence on his part, and by the fault and negligence of the defendant, was thrown from a train of cars and run over and killed. She alleged that the fault and negligence of the railroad company consisted in the violation of the ordinance of the city of Augusta which prohibits the running of railroad cars through its streets at a greater rate of speed than five miles per hour; in the cars being so run through the streets of said city upon a defective curve which was not the standard gauge by from half an inch to an inch and a half; in said curve not being properly elevated and lined up from two to five inches; in allowing dirt, mud, etc., to accumulate in said curve, and not keeping the curve clear and cleaned out; and in not keeping a guard-rail on the lower side of said curve, to prevent the wheel from mounting and running off on the upper side of said curve; and that by reason of this illegal running, and these defects in the track of said company, the car upon which the plaintiff's husband was riding was thrown from the track, and he was killed.
The defendant filed a plea of the general issue, and other special pleas, which appear in the record. Upon the trial of the case the jury returned a verdict for the plaintiff. The defendant made a motion for a new trial upon the grounds set out in said motion, which was overruled by the court, and the defendant excepted and assigns the same as error. The plaintiff also filed a cross-bill of exceptions, alleging errors in the rulings of the court during the progress of the trial, and in certain charges of the court, which are set out in the cross-bill of exceptions, and which will be referred to further on in this opinion.
It appears from the record that the Augusta & Knoxville Railroad Company had only completed its track a short distance, to-wit, from their depot in the city of Augusta to the Sibley mills; that they had not commenced doing a general business; that they had no rolling stock of their own, but sometimes would hire engines and cars to transport freight from their depot in the city to said Sibley mills. It appears further, from the record, that Mr. Fisher, a wood-dealer in the city of Augusta, had engaged a train of the Port Royal & Augusta Railroad, (running from Port Royal, South Carolina, to Augusta,) and had it loaded with wood or slabs in the state of South Carolina, and transported to the city of Augusta over said Port Royal & Augusta Railroad. This load of wood or slabs had been sold or engaged by him to the Sibley mills. Wishing to avoid the expense of unloading from one train and loading upon another, after the train arrived at the depot of the Port Royal & Augusta Railroad in the city of Augusta, Fisher obtained the permission of Mr. Fleming, the superintendent of the Port Royal & Augusta Railroad Company, for the train to proceed from the depot of the latter, on the track of the Georgia Railroad Company, and thence over the Augusta & Summerville Railroad, which connected with the Augusta & Knoxville Railroad, and to proceed along the track of the latter road to the Sibley mills. The train consisted of eight flat cars, loaded with wood, pushed forward by a locomotive from behind, and manned by employes of the Port Royal & Augusta Railroad. John H. Killian, the plaintiff's husband, was by direction of Mr. Fleming, the superintendent, to accompany this train to the Sibley mills, for the purpose of seeing that it was unloaded promptly and returned to the Port Royal & Augusta Railroad. When the train arrived at the depot of the Augusta & Knoxville Railroad, an arrangement was made with Mr. Twiggs, the superintendent of the latter road, for it to proceed to the Sibley mills. Twiggs, the superintendent, ordered one Steve Burton to go upon the engine and act as a pilot, and inform the engineer of the curves and "tight places" in the track. Twiggs, together with Killian and two others, mounted the front flat car, and Twiggs gave the signal to start. The train proceeded from the depot of the Augusta & Knoxville Railroad towards the Sibley mills, and, when about to reach the curve of the road on Greene street, Burton told the engineer to put on more steam, or he would be stalled at the curve. The engineer did put on steam, and the front wheels of the front car ran off on or about the crossings where the curve was situated. Killian and others were standing on top of the wood, and, when the front wheels left the track, the standards which held the wood were broken, and the wood fell, precipitating Killian under the wheels of the car, which ran over him, and killed him. Twiggs and the others escaped injury. These are the main facts in the case as disclosed by the record.
1. Under the view which we take of this case, it is unnecessary for us to pass upon each and all of the assignments of error set out in the motion for a new trial. It occurs to us that the case was submitted to the jury by the court on a wrong theory. The court seemed to think that this case was governed by the ruling in the case of Railroad Co. v. Mayes, 49 Ga. 355. We do not think that the principle ruled in that case is applicable to this case, according to the facts disclosed by the record. In this case the train, with all the employes necessary to manage it, belonged to the Port Royal & Augusta...
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