Bowers v. Southern Ry. Co.
| Decision Date | 15 January 1912 |
| Docket Number | 3,572. |
| Citation | 73 S.E. 677,10 Ga.App. 367 |
| Parties | BOWERS v. SOUTHERN RY. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Under the act of Congress prescribing the liability of carriers by railroad for injuries to their employés, the servant may assume the risk as in other employments, except as to such things as are violative of statutes enacted for the securing of the servant's safety.
Where a passenger train running at somewhat more than the schedule rate of speed is wrecked by reason of the fact that a trespasser turned the switch between the main line and a siding, whereby the train was caused to leave the main line and run into a siding, and was there derailed at a safety switch situated in the side track at a point some 100 feet from the main line, and injury to the fireman was caused by the wreck, neither the alleged excessive speed at which the train was running nor the situation of the safety switch is to be regarded as the proximate cause of the plaintiff's injury, especially where it appears, from the allegations of the petition and the proof on the trial, that the same result probably would have ensued if the train had been running at a normal rate of speed. The proximate cause of the injury is the act of the trespasser.
In a suit for damages, if it appears that there intervened between the alleged negligence of the defendant and the damage sustained by the plaintiff the independent criminal act of a third person, which was the direct and proximate cause of the damage, the plaintiff cannot recover.
As to one to whom the railroad company does not owe a higher degree of care than the standard of ordinary care and diligence imposes, and owes no affirmative duty of protection such as it owes passengers, the negligence of the railroad company in leaving a switch unlocked is not to be regarded as the proximate cause of an injury which ensues because a willful and conscious trespasser by a criminal act turns the switch whereby the train is wrecked and a person is injured. The intervening independent act of the trespasser renders remote the negligence of the railroad company in leaving the switch unlocked.
Since the defendant's liability in the present case turns solely upon the question as to whether the switch, through the turning of which the train had been wrecked, was turned by the criminal act of a trespasser, alleged evidence relating to other and independent matters will not be considered, since, even if error were found, it should be treated as harmless.
Where evidence is objected to, and the court in response to the objection states that he does not admit it generally, but admits it for a special purpose, and counsel for the objecting party, upon ascertaining the purpose for which it is to be admitted, make no further objection to it, no valid assignment of error can be based on the court's act in admitting it.
A witness in this state is not rendered incompetent by conviction of a felony, or other crime, irrespective of whether the conviction be had in this state or in another state, and irrespective of whether the conviction in the state in which it was had carries with it incompetency to testify or not. The competency of witnesses is regulated by the law of the forum.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by Hattie Bowers, administratrix, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
The plaintiff's husband (on whose estate she was administratrix) was killed on an interstate train. He was a fireman of defendant, engaged in interstate commerce. The plaintiff originally brought suit in two counts under the South Carolina statute and two counts under the federal statute; but the court excluded the two counts under the South Carolina statute, upon the ground that the federal statute applied. The death of the intestate while working as a fireman on an interstate train, administration, earning capacity, number of children, contribution, and other formal parts of the case were proved. It was shown that, at what is known as "Gross' Siding," where the decedent met his death, there is a switch and side track running to a factory about a mile and a half away. The track approaches this point on a steep downgrade, through a deep cut, and on a curve. The train on which the decedent was engaged at the time of his death approached this point running at the rate of about 35 miles per hour (which was slightly above its ordinary speed under the schedule, but not greater than the speed allowed by the rules of the company), and at the switch left the main line, dashed into the side track, and at what is known as the safety or derailing switch (i. e., a device placed in a side track whereby, if cars left on the side track are put in motion, they will not run out upon the main line, but will be thrown from the track before the main line is reached) the engine was derailed and turned over producing the fatality for which the suit is brought.
The plaintiff made the following specifications of negligence (1) Defendant was negligent, in that its track was so constructed that the approach to the switch was around a curve and through a deep cut, preventing the engineer and fireman from seeing the lights on the switch stand and detecting its condition in time to slow up and avoid running into the same. (2) Defendant was negligent, in that it had in the siding, right close to the main line switch, what is called a "safety switch." The effect of a safety switch at this place is that when the switch is thrown, unless the safety is also thrown, the train entering the switch will, instead of going down the side track, run off, as was done in the present case. (3) Defendant was negligent, in that the switch was left unlocked by its employés, leaving it where any passer-by could throw the same to the side track. (4) Defendant was negligent, in that its employés working upon its road threw said switch to the side track, instead of the main line. (5) Defendant was negligent, in that the engineer was running at an excessive rate of speed. (6) Ordinary care required the defendant to have and maintain a switch target and switch lights, constructed as follows: A post placed around the curve from the switch, so that the same could be seen at a long distance from the switch; the signals on this post to be connected by wires, so that when the switch was thrown the wires would throw the lights by night and the boards by day, indicating to an approaching train whether the switch was thrown to the side track or the main line, and giving such indication in time for the train to stop. Defendant failed to have any such target or signals. Such failure on the part of the defendant was negligence. (7) Defendant was negligent, in that the rails of the side track, where the wreck occurred, were small and light, and not sufficiently strong to hold the engine which was wrecked, the same being a very large engine, and the cross-ties were rotten and defective. (8) Defendant was negligent, in that the light on the switch target was not lighted.
The defendant pleaded that as to the acts of negligence alleged the plaintiff's intestate had assumed the risk, and in this connection showed that he had been running for over two years over this same track at this place in the condition it was at the time of the injury (except, of course, in so far as the switch was on this occasion turned to the side track). Defendant further pleaded that the proximate cause of the injury was an act for which it was in no wise responsible namely, the act of a trespasser in breaking the lock on the switch and turning it so as to throw the train to the side track. On this phase of the case the defendant showed by the evidence of one Clarence Agnew himself that he had thrown the switch from the main line to...
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