Central R. & Banking Co. of Georgia v. Phinazee

• Decision Date: 08 January 1894
• Citation: 21 S.E. 66,93 Ga. 488
• Parties: CENTRAL RAILROAD & BANKING CO. OF GEORGIA v. PHINAZEE.
• Court: Georgia Supreme Court

21 S.E. 66

93 Ga. 488

CENTRAL RAILROAD & BANKING CO. OF GEORGIA v. PHINAZEE.

Supreme Court of Georgia

January 8, 1894

Syllabus by the Court.

1. A chartered railroad company permitting another company to run trains over its railway, and thus to use its franchise, is liable to a passenger upon one of such trains for a personal injury sustained by him by reason of a derailment resulting from negligence in failing to have and maintain a safe track.

2. It is not incumbent upon the court to charge that, "if the jury should believe that any of the witnesses sworn for the plaintiff have been successfully impeached or contradicted in a material matter sworn to by him or them, then the jury can disregard the whole testimony of such witness." A witness might be contradicted in a material matter, and still be entitled to full credit as to other matters.

3. If the plaintiff's intoxication did not contribute to his injury, or to the degree of it, his being intoxicated would not affect his right to recover; nor should it count against him, as disqualifying him to avoid the consequences of the defendant's negligence, if the circumstances were such that a prudent, sober man could not have avoided them by the exercise of ordinary diligence.

4. The evidence was not so clearly insufficient to warrant a verdict as to render it reversible error for the presiding judge to deny a new trial.

Error from superior court, Bibb county; W. F. Jenkins, Judge.

Action by W. J. Phinazee against the Central Railroad & Banking Company of Georgia. Judgment for plaintiff, and defendant brings error. Affirmed.

R. F Lyon, Steed & Wimberly, and John R. Cooper, for plaintiff in error.

Hugh V Washington and Hardeman, Davis & Turner, for defendant in error.

BLECKLEY C.J.

1. There is no less skepticism in law than in theology. This court is called upon again and again for a fresh revelation of some legal truth which has already been revealed. After the cases of Railroad Co. v. Mayes, 49 Ga. 355; Singleton v. Railroad Co., 70 Ga. 464; and Railroad Co. v. Liddell, 85 Ga. 482, 11 So. 853,-it would seem that there could be no reasonable doubt of the liability of a chartered railroad company permitting another company to run trains over its railway, and thus to use its franchise, to respond for any damage occasioned by negligence, whether its own or that of its lessee or licensee. Obviously, the principle of those cases extends to an injury sustained by a passenger in consequence of the derailment of a train caused by negligence in failing to have and maintain a safe track. Indeed, the last of the cases above cited related to injuries sustained by a passenger, and the proprietary company was held liable.

2. The request to charge the jury that, "if the jury should believe that any of the witnesses sworn for the plaintiff have been successfully impeached or contradicted in a material matter sworn to by him or them, then the jury can disregard the whole testimony of such witness, whether it be the plaintiff or...