Central R. Co. v. Hubbard

• Decision Date: 07 February 1891
• Citation: 12 S.E. 1020,86 Ga. 623
• Parties: CENTRAL R. CO. v. HUBBARD.
• Court: Georgia Supreme Court

12 S.E. 1020

86 Ga. 623

CENTRAL R. CO. v. HUBBARD.

Supreme Court of Georgia

February 7, 1891

Syllabus by the Court.

A declaration alleging that the plaintiff's husband, an employe of a railroad company, was killed by an engine of the company, setting forth such a statement of the facts and circumstances connected with the killing as did not of themselves negative the existence of negligence on the part of the company, and distinctly averring that the deceased was without fault, and that the killing was caused by the negligence of the company's servants in the running of such engine, was not demurrable.

Whether or not the presumption of negligence, which section 3033 of the Code provides shall in all cases be against a railroad company, has been removed, is a question of fact for the jury, and not one of law to be determined by the court.

In a suit against a railroad company by a widow for the killing of her husband, who was an employe of the company, a request to charge, grouping together certain alleged facts tending to show negligence on the part of the deceased, and instructing the jury that if these facts be true the plaintiff cannot recover, without leaving the jury to determine whether such facts did or did not constitute negligence on his part, was properly refused.

When the plaintiff's declaration alleges that her husband was killed in a specified way by the negligent running of a particular train or engine of a railroad company, and the proof shows that he was killed by another engine of the company, and in a manner different from that alleged, and the evidence is such that, in any view of the case, the plaintiff's right to recover is very doubtful, a verdict in her favor should be set aside.

Error from superior court, Bibb county; MILLER, Judge.

R. F Lyon, for plaintiff in error.

Dessau & Bartlett, for defendant in error.

LUMPKIN J.

1. The declaration in this case alleges that the plaintiff's husband, who was in the employment of the Central Railroad as a track hand, was killed by the negligent running of an engine or train of the company. It undertakes to state the circumstances of the killing, and the allegations of the declaration are not such as, of themselves, would negative the existence of negligence on the part of the company. Besides, it distinctly alleges that the deceased was entirely free from fault or negligence, and, further, that his death was caused by the negligence of the company's other servants. If all the allegations in the declaration are true a cause of action is set forth, and it was not necessary that the plaintiff should minutely and in detail describe every fact and circumstance in the case which would tend to show the want of negligence on the part of the deceased. The declaration was sufficiently full and accurate to inform the defendant of the nature of plaintiff's complaint, and this is all the law requires.

2. On the trial the defendant's counsel requested the court to charge as follows: "No presumption of negligence arises against the railroad company in cases of injuries where the evidence shows how the injury occurred, and where all the facts and circumstances are in evidence which resulted in the injury complained of. In such cases, negligence or no negligence depends on the facts in evidence, and not upon presumption;" and, further: "No presumption of negligence on the part of the defendant can arise, if the facts in evidence show how the injury did happen, and what caused it. In such cases, the negligence will depend on the facts in proof, and not upon the presumption arising from any cause." Section 3033 of the Code plainly declares that in all cases of this kind the presumption of negligence shall be against the company. The requests quoted are to the effect that on the trial of some cases this presumption shall not arise, or, at least, that it must not be considered by the jury in arriving at a proper verdict. To give such instructions to the jury would be to disregard the plain meaning of the statute. If, in any case, all the facts and circumstances are proved, it would still remain a question for the jury to determine whether or not the legal presumption had been removed, and this function should not be limited or taken from them by the court. The idea of the defendant's requests is that where the case has been fully developed, and the evidence shows exactly what occurred, then the case should be decided on the facts as they appear, and without regard to presumptions; but, under the law, the plaintiff is entitled to the benefit of this presumption against the company, in connection with all the facts, in having the jury arrive at a proper conclusion. In other words, this presumption goes through the entire trial, the question always being whether it has or has not been removed or rebutted by the evidence. Of course, it may be so rebutted, and this can be done by evidence introduced by the plaintiff as well as by defendant; but the jury, and they alone, must say whether the presumption remains or has been removed, and it is not for the court to deprive them of this right, or relieve them of this duty, by any instruction given. Again, it rarely, if ever, happens that all the facts of a case are brought out, and, even if these requests were proper in a case where the whole truth had been developed, it would almost invariably be a matter of the gravest doubt whether this had been done, and hence it would most generally be of exceedingly doubtful propriety and justice to apply such a doctrine. It is highly probable that in another trial of the case now under consideration other facts will be made to appear on both sides.

3. Except as to those things which the law declares shall constitute negligence per se, it is always a question of fact for the jury, and not one of law for the court, whether or not given conduct or acts are negligent. Hence a request which grouped together a number of alleged facts, tending to show negligence on the part of an employe who had been killed by a railroad, and instructing the jury that if these facts are proved there could be no recovery against the company, was rightfully refused. Such an instruction, if given, would have taken from the jury the right and duty of saying whether these particular facts did or did not show negligence, which is their peculiar and exclusive function in such cases. If the request, after reciting hypothetically the alleged facts, had been qualified by some such words as these, "and if you further find that these facts showed negligence on the part of the deceased in the occurrence under investigation," the court might have given it, for the jury would still have been left free to determine this vital question for themselves; but without some such qualification it would have amounted, if the facts were as stated, to the court's deciding this important question, and taking it from the jury altogether. This, of course, under our system, is in no case permissible.

4. The plaintiffs' declaration alleges, in substance, that her husband was employed as a track hand by the Central Railroad in its freight-yard at Macon; that while employed and engaged on one of its tracks a train came along thereon, and it became necessary for him to step from said track to avoid that train;...