Central R.R. & Banking Co. v. Maltsby

• Decision Date: 06 December 1892
• Citation: 16 S.E. 953,90 Ga. 630
• Parties: CENTRAL RAILROAD & BANKING CO. v. MALTSBY.
• Court: Georgia Supreme Court

16 S.E. 953

90 Ga. 630

CENTRAL RAILROAD & BANKING CO. v. MALTSBY.

Supreme Court of Georgia

December 6, 1892

Syllabus by the Court.

1. In so far as the evidence of an employe of one of the parties conflicts with that of other witnesses, the jury may look to his employment as a fact which may affect his credibility.

2. A request to charge, covered by the general charge, need not be given.

3. The evidence being that the plaintiff was furnished with a compling stick, to be used till he learned how to couple without it, and that his injury was received after he had learned to couple without a stick, and had on many occasions done so, some of the instances being in the presence of his superior officers, who made no objection, the court properly denied a request by the defendant to charge the jury that if the plaintiff, in undertaking the service, was furnished with a coupling stick, and directed to use it in coupling, but did not use it at the time of the injury, and attempted to make the coupling with his hand instead of the stick, and was hurt in making such attempt, he could not recover.

4. That an engine was defective is not established by the testimony of the plaintiff that the engineer told him some days after the injury that it had certain defects, although the engineer had testified that he did not so tell him. Impeaching the evidence of the engineer by contradicting him as to what he had said would not prove that what he had said was true. Such impeaching evidence being the only evidence touching any defect in the engine, there was nothing on which to base instructions to the jury to "look to the evidence, and determine whether the engine was defective, *** whether there was a leak in the steam, which escaped into the cylinders and caused the accident." So instructing was consequently erroneous.

5. Answers to hypothetical questions as to how an engine would act if steam escaped into the cylinders, etc., would not establish the fact that there was a defect in the engine without evidence that the particular engine acted in that manner.

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

Action by G. R. Maltsby against the Central Railroad & Banking Company to recover for personal injuries caused by defendant. There was a verdict for plaintiff, and, defendant's motion for a new trial being overruled, it brings error. Reversed.

R. F Lyon, for plaintiff in error.

Minter Wimberly, for defendant in error.

SIMMONS J.

The injury on account of which the action was brought was the mashing of the plaintiff's hand while he was coupling cars as a "car coupler" of the defendant. The following appeared from the evidence: A train of cars attached to an engine was to be coupled to a single car, and the plaintiff signaled to the engineer to back the train towards the car. The train came back slowly, until within about 12 inches of the car, and stopped. The plaintiff, who had gotten between the train and the car in order to make the coupling, signaled again, doing so with a coupling stick which he held in his right hand, and at the same time lifted the link with his left hand; but before he could draw his hand out the cars came together, and mashed his fingers. In approaching the car the train was upon a downward grade. The plaintiff testified that by his signal he had directed the engineer to come back slowly, and that, if the train had come in that manner, he could have made the coupling without getting hurt; but that instead it jumped back suddenly, and with great force. According to the declaration, this sudden movement was due to the fact that the vacuum brakes on the engine were out of order. It was alleged that, in order to stop the engine when the first stop was made in coming back the engineer,...