Carroll v. East Tennessee, V. & G. Ry. Co.

• Decision Date: 25 September 1889
• Citation: 10 S.E. 163,82 Ga. 452
• Parties: CARROLL v. EAST TENNESSEE, V. & G. RY. CO. EAST TENNESSEE, V. & G. RY. CO. v. CARROLL.
• Court: Georgia Supreme Court

10 S.E. 163

82 Ga. 452

CARROLL v. EAST TENNESSEE, V. & G. RY. CO.

EAST TENNESSEE, V. & G. RY. CO. v. CARROLL.

Supreme Court of Georgia

September 25, 1889

Syllabus by the Court.

1. A motion for a new trial, duly continued from a day set for hearing it in vacation to the next term of the court, need not be further continued from one day to another during the term, though successive orders be passed appointing particular days for the hearing. Once in court in term time the motion remains there in full life until heard or otherwise disposed of.

2. Where the want of care and diligence imputed to the plaintiff, who was a fireman upon a locomotive, relates to his failure to keep the engineer awake, or take other measures for his own safety, and the imputed negligence reaches back some hours, a paragraph of the court's charge to the jury, which might be understood by them as restricting the inquiry to a much shorter period, is erroneous; and for the court, in the same paragraph, to specify certain conduct of the fireman, and instruct upon it in a way to imply that the same would not be negligence, is additional error, the question whether such conduct would or would not be negligence being for the jury.

3. The measure of risk which a fireman ought to incur by remaining upon a locomotive, and assisting a sleeping engineer to run the train, is that only which his duty and obligations to the company, under all the circumstances, impose upon him. If the subjects himself to any greater risk, and is thereby injured he is not without fault, and cannot recover.

4. Reports to the general manager of the company touching the facts, circumstances, and results of a railway accident, and who was to blame therefor, made several days after the event by the superintendent and the conductor, supported by the affidavit of the latter and of several other employes, are not admissible in evidence to affect the company, whether such reports were exacted and made under standing rules requiring the same, or under special orders for the particular occasion; no question of notice to the company being involved in the controversy.

5. It being in question whether a fireman could, by reporting the facts of his situation to an official of the company by telegraph, have obtained relief from his peril, evidence is admissible to show that, under the usage and practice of the company in like or analogous circumstances, relief would probably have followed in a specified way, and by the use of specified means.

6. An employe of a corporation, though obligated in writing, as terms of his employment, to "study the rules governing employes, carefully keep posted, and obey orders," is not bound by rules, as such, of which he is ignorant, and which have never been promulgated to him by the company.

Error fron superior court, Bibb county; GUSTIN, Judge.

Dessau & Bartell, for plaintiff.

Bacon & Rutherford, for defendant.

BLECKLEY C.J.

1. The case was tried at the November adjourned term, 1887, and the motion for a new trial was made during the same term; the hearing of the motion being fixed by order for a day in vacation, and then continued to the following May term. Other continuances took place during the May term, each of them being to a particular day. One of these days was June 30th, on which no action was taken with reference to the motion. On July 2d the motion was taken up, and continued to a subsequent day in the same month, and on the latter to a still later day, when it came up for a hearing, and the respondent moved to dismiss it because no continuance from the 30th of June to the 2d of July had been granted or entered. The motion to dismiss was properly overruled, because, after the May term of the court was reached by duly continuing the motion from the November adjourned term, no further continuance was requisite in order to keep that matter in court so long as the May term lasted; and that term, as we understand the record, was still in progress when the motion for a new trial was finally taken up and decided. The rule as to continuance from day to day in vacation has no application to what transpires in term-time. Once in court, the motion remains there until heard or otherwise disposed of. Fixing a time for the hearing, or entering continuances from day to day, is no disposition of it.

2. The court committed no error in granting the motion for a new trial on the fourteenth and seventeenth grounds of the amended motion. The most vital question in the case was one of fact, to-wit, whether the plaintiff was negligent in remaining upon the engine, and exposing himself to risk, without taking more active and diligent measures to keep the engineer awake, or urging the conductor to do so, or telegraphing to the master of trains or some other officer to interpose. That the engineer was falling asleep at his post was known to the plaintiff, who was his fireman, some time before the collision happened, and consequently the question of his negligence should not have been restricted in point of time to the moment of collision, and some minutes previous there to. The charge of the court in the four teenth ground of the motion was as follows: "If the jury should believe, from the evidence in the case, that the train on which the plaintiff was as fireman was approaching another train on the same track; that the engineer of plaintiff's train was at some distance from the latter train, at his post and awake, discharging his duty; that the plaintiff did not know of the approaching train; and that the plaintiff, having finished firing his engine, took his seat on the place assigned to him, and then, discovering a train ahead, and that his engine was not slacking, and that the engineer was alseep,--then I charge you that if the plaintiff was injured by a collision which he could not have avoided by the exercise of all reasonable care and ordinary diligence, in the causing of which no fault was committed by or attributable to him, he may be entitled to recover." This might have been understood by the jury as virtually throwing out of the case any and all negligence the plaintiff may have been chargeable with until just before the collision took place, and was, besides, an intimation to the jury that the conduct of the plaintiff, if as described in the charge, would not amount to negligence. But for this instruction, the jury might have thought, in view of what had already transpired within the plaintiff's knowledge showing the tendency of the engineer to go to sleep, that it was not enough for the plaintiff to see that he was awake, and then seat himself at the place assigned to him, but that he ought to have continued to see to it and assure himself that the engineer kept awake. The charge seems obnoxious to both objections which we have indicated, viz., a too narrow restriction in point of time, and a too wide latitude in drawing to the court and taking from the jury a decision of the question of negligence.

3. The request of counsel for the defendant to charge the jury as set out in the seventeenth ground of the motion for a new trial was as follows: "If you find that the said Carroll was an employe of the defendant, and that he subjected himself to any greater danger or risk than his duty and obligations to said company required, and that by reason of said increased danger or risk he has been injured, then the court charges you that he cannot recover." In view of the testimony in the record, we agree with the court in thinking that this charge should have been given in the terms requested, and without any qualification. If the plaintiff took any improper risk, it was by remaining upon the engine without doing more than he did in seeing that the engineer kept awake, or without...