Central R.R. v. Crosby
| Decision Date | 17 March 1885 |
| Citation | 74 Ga. 737 |
| Parties | THE CENTRAL RAILROAD v. CROSBY. |
| Court | Georgia Supreme Court |
February Term, 1885.
1. Where, in a suit by a wife for the homicide of her husband who was a railroad employé, the Carlisle tables of mortality were introduced in evidence and the value of the services of the deceased proved, thereby furnishing a measure of damages, and after a verdict for the plaintiff for $12,000, and pending the motion for new trial, counsel for plaintiff voluntarily wrote off from the verdict $2,000, so as to come within the measure of damages proved, the refusal of a new trial was not error.
( a. ) This case differs from that of the Savannah, Florida and Western Railroad vs. Harper 70 Ga. 619.
( b. ) Counsel for the plaintiff could write off any part of the damages recovered, and the defendant could not complain, because it was not hurt by making the judgment less.
2. In a suit against a railroad on account of the homicide of an employé, an allegation that the company did the negligent or careless act which caused the homicide, or omitted the diligence which would have prevented it, is sufficient, and is equivalent to an allegation that the co-employés of the decedent were guilty of such negligence.
3. In a suit by the widow of a deceased employé of a railroad for his homicide by the negligence of his co-employés a plea which admitted the killing but did not admit either that decedent was free from fault or that the other employés were at fault, was not a plea of justification.
( a. ) Where all the evidence, admissible under a plea claimed to be a plea of justification, would be admissible under a plea of the general issue, such a plea would not amount to a plea of justification, or give the defendant the right to open and conclude.
4. The Carlisle tables of mortality are admissible in evidence. They are not conclusive, but may be considered by the jury as data on which they may act.
5. When read in connection with the entire charge, there was no error in charging, on the issue as to the engineer's remaining on his engine, or jumping off to save his life, when a collision was imminent, that if, in the emergency upon him, he believed, and had reason to believe, that by sanding the track or otherwise working the engine, he could prevent a collision and save life, and it was necessary to that end that he remain at his post in this moment of danger, then for his death, resulting from such collision, his widow could recover; but if it was not so necessary, and he knew it, or ought to have known it, then she could not recover on this issue.
6. The refusal to charge the requests contained in the fifth, sixth and seventh grounds of the motion for a new trial will not authorize a new trial, when considered with the charge of the court. The charge was full, fair, clear and able.
7. The evidence as to the negligence of the deceased was close, but was sufficient to uphold the verdict.
8. In respect to avoiding an injury from the collision o a freight with a passenger train, by leaping from his engine, the engineer on the freight train should remain at his post so long as his presence on the engine may be of use to prevent the catastrophe.
Verdict. Attorney and Client. Practice in Superior Court. Railroads. Damages. Negligence. Master and Servant. Evidence. Before Judge SIMMONS. Bibb Superior Court. April Term, 1884.
Mrs. C. E. Crosby brought her action for damages against the Central Railroad, to recover on account of the death of her husband, caused by a collision of trains on that road. She laid damages at $50,000.00. The defendant pleaded the general issue, and also filed special pleas, admitting that Crosby was killed by the collision of its train, but alleging that he was the engineer on one of them, giving a detailed history of the running of the trains from Savannah to the point of collision, and alleging that the train, which was running in front of that on which Crosby was, became divided by the breaking of a pin; that he was in violation of his duties in running at an improperly high rate of speed, and in not having his train under proper control; that he did not use proper means of stopping it; and that it ran into the one in front of it through his own carelessness; also that he remained on the train when it was apparent that a collision was unavoidable, and thus voluntarily exposed himself to the danger resulting therefrom.
On the trial, the following facts, in brief, appeared: Three trains left Savannah for Macon on November 27, 1880. These were respectively known as follows: Number 7, a freight train, was composed of two sections, A and B, both of which left Savannah at four o'clock P. M. and were due in Macon at five o'clock A. M. on the following day. Number 9 also was composed of two sections, A and B, carrying freight. They left Savannah at 5:40 P. M., and were due in Macon at eight o'clock A. M. the next day. Number 3 was composed in part of freight cars and in part of passenger and sleeping cars. It left Savannah at 7:30 P. M., and was due in Macon at eight o'clock A. M. the next day. Crosby was the engineer of section A of number 9. At station number 12, Crosby's train caught up with number 7, and learned that section A of the latter, by reason of a disabled engine, or some other reason, could not make schedule time. The engineer on section B of number 7 testified that section A of that train was run by an old gentleman who could not " pull his train " that the witness ran close behind him so as to aid him, as was the custom with engineers where a train was " weak." Crosby followed both sections of number 7 until he reached station number 16, which he did as number 7 was leaving. By this time, however, the trains had fallen behind, so as to be on the schedule of number 3, and therefore sections A and B of number 9 took the side-track and waited until number 3 should go by, which it did, and Crosby's train then followed, and was in turn followed by section B. Train number 3 reached station number 17 as train number 7 was leaving, and followed shortly afterwards, on its own schedule. Sections A and B of number 9 followed some ten or twelve minutes afterwards, on the schedule of number 3, being flagged by the latter. After leaving station number 17, there is a long up-grade, and after reaching its top, there is a long down-grade in which there are curves and cuts. In climbing this grade, train number 3 came up with section B of number 7, and as number 3 began to go down the grade, the engineer shut off steam and allowed the train to roll down. When the time came for him to increase his speed, he opened the throttle, and when he did so, he felt a jerk behind, and looking back, found that the rear portion of the train, where the passenger cars were, had become detached from the front portion. The separation of the hose or pipes connecting the engine with the passenger cars caused the air-brakes to be applied, and the latter stopped, while the front portion of the train moved forward. On making the discovery, the engineer stopped his engine within about six car-lengths, as he testified, or a little more, as others testified, told his wood-passer to gather up the hose which had pulled loose and was on the track, and started back to re-couple the separated portions of the train. A train-hand also was assisting in gathering up the hose. He discovered that the coupling-pin was broken, and called to another hand to bring another pin, but the person called appeared not to have heeded the call, being occupied in warning the passengers of the approaching danger. When the engine nearly reached the detached cars, the engineer testified that he heard the whistle of Crosby's train blow, and discovering that there was no chance to make the coupling before the latter reached the spot, he at once moved forward to get out of the way. He thought that, if they had had what was needed to make the coupling, it might have been done in time. When the rear portion of number 3 was found to be stopping, and it was discovered that it had become severed from the front portion of the train, the conductor told the baggage-master to go forward and make the coupling as quickly as possible, while he himself went back. When he had gone back about two hundred yards, he saw Crosby's train coming, and signalled for it to stop. The signal could have been seen about five or six hundred yards away. The conductor, who gave the signal, testified that, when signalled, Crosby's engine was 1,600 feet from the detached part of number 3.Crosby's train went on with very little, if any, diminution of speed, and ran into the rear end of the passenger coaches of number 3, and directly afterwards section B ran into the rear portion of section A. The fireman on Crosby's engine leaped from it, when he saw the approaching danger, and escaped injury. When Crosby reached a point where he could see the signal to stop, the evidence for the plaintiff shows that he blew on the brakes, reversed or tried to reverse his engine, applied steam, and began working the sand lever so as to sand the track. The evidence for the defendant tended to show that the engine was not reversed when found after the collision. There was some evidence to show that at times the lever would be jerked from the reversed position into a forward position. As to the necessity or propriety of Crosby's conduct, there was some conflict in the evidence. The plaintiff introduced evidence to show that working the sand-lever, and thereby sanding the track, in conjunction with reversing the engine and applying steam, would tend to stop the train sooner than it otherwise would stop; that sometimes the sand would be clogged, unless the...
To continue reading
Request your trial