Central R.R. of Georgia v. Ryals

• Decision Date: 24 February 1890
• Parties: CENTRAL R. R. OF GEORGIA v. RYALS.
• Court: Georgia Supreme Court

11 S.E. 499

84 Ga. 420

CENTRAL R. R. OF GEORGIA v. RYALS.

Supreme Court of Georgia

February 24, 1890

Syllabus by the Court.

1. Though ordinary care as a legal standard for the measure of diligence is invariable, yet, as the conduct of a prudent man varies with the degree of danger attending the vocation in which he is engaged, and is more or less cautious according to circumstances, those who are bound to conform their conduct to his must graduate it in like manner. This applies both to one exposed to danger, and to others not so exposed whose acts or omissions affect his safety.

2. The rules of a railway company for the government of its employes are not obligatory as such upon those who are not aware of them, and to whom they have not been promulgated.

3. The injury involved in the case having been received by the subordinate while acting under orders from his superior, his habit to act hastily and needlessly upon other occasions was not sufficiently relevant to be admissible in evidence.

4. The opinion of a witness that the backing of the train was very carefully done, and that nothing was done carelessly or negligently, was not admissible.

5. Though the verdict is not altogether satisfactory to this court, inasmuch as it was rendered by the jury, and approved by the presiding judge, and is not palpably unwarranted, it is left to stand.

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

Action for damages received by plaintiff while in the employ of defendant railroad company. There was a judgment for plaintiff, and defendant brings error.

R. F Lyon, for plaintiff in error.

Desseau & Bartlett, for defendant in error.

BLECKLEY C.J.

1. The Code, § 3033, is in these words: "A railroad company shall be liable for any damage done to persons, stock, or other property, by the running of the locomotives or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company." The court instructed the jury expressly that "if the defendant has made it appear that its agents oremployes, at the happening of the injury, and in about the service resulting in the injury to the plaintiff, exercised all ordinary and reasonable care and diligence, then the plaintiff is not entitled to recover." The duty of the plaintiff to be free from fault was also covered by the charge. It is complained that the court, after charging the jury "that any one entering the employment of a railroad company enters it undertaking to bear all the risks incident to that employment," then erred in charging as follows "That, if it is of a dangerous character, he bears the risks incident to an employment of a dangerous character, and that the more dangerous the employment is the greater care he is required to take while engaged in that employment; but that carries with it also the obligation on the part of the other employes of the railroad company to exercise greater skill and care on their part. If the employe is put to perform a dangerous duty, and there are certain duties resting on the other employes to protect him or give warning or anything of that kind in connection with that duty, the more dangerous the duty the greater care and skill is required on their part. If, in connection with a duty to be performed by any employe, it is the duty of other employes to give warning or to give direction, the more dangerous his duty is the more careful they should be in the performance of theirs." The standard of ordinary and reasonable care is invariable, such care being that of every prudent man. Code § 2061. But the care of a prudent man varies according to circumstances dependent upon the degree of danger. Beach, Contrib. Neg. 22; 2 Thomp. Neg. p. 982, § 11, and notes; Deer. Neg. §§ 7, 210; Wharton. Neg. §§ 47, 48 et seq.; Cayzer v. Taylor, 10 Gray, 274; Morgan v. Cox, 22 Mo. 373; Nitro-Glycerine Case, 15 Wall. 536, 537; Railroad Co. v. McDaniels, 107 U.S. 454, 2 S.Ct. 932. "What is the precise legal intent of the term ...