Chattanooga, R. & S. Ry. Co. v. Downs

• Citation: 106 F. 641
• Decision Date: 12 February 1901
• Docket Number: 856.
• Parties: CHATTANOOGA, R. & S. RY. v DOWNS.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

106 F. 641

CHATTANOOGA, R. & S. RY. v DOWNS.

No. 856.

United States Court of Appeals, Sixth Circuit.

February 12, 1901

This was an action to recover for an injury happening to the plaintiff at Lytle Post Office, near Battlefield, Ga., a station on the Chattanooga, Rome & Southern Railway. The injury was received under the following circumstances: Some distance south of the passenger depot at this point variously stated at from 60 to 600 feet, the Southern Express Company, by permission of the railroad company, had erected a building for the reception and delivery of express packages. The main line of the railroad runs in front and west of this building. In the rear of the building is a side track. On the west front of the express company's building, and across the main track, was a road in common and general use at the time and upon which express wagons were in the habit of stopping in delivering and receiving the packages which were taken to and fro across the track. The platform on the west of the express company's building is a little over 7 feet wide and about 3 feet and 4 inches from the track. The plaintiff, for the purpose of getting some express packages which were to be delivered at a restaurant near by, maintained near a camp of soldiers which was there at the time, visited the office, entered the same, and upon inquiry, learned that certain express packages were there. For the purpose of giving notice to a driver across the track to deliver certain of the packages at the restaurant, for which they were intended, the plaintiff came out upon this platform, stepped down on the main track, and was almost immediately struck by an engine running backward from the south, past the express office, towards the passenger depot. The jury, by their verdict, having found the allegations of negligence of the railway company to be true, it may be taken as settled, for the present purpose, that the servants of the railroad company in charge of this engine were guilty of negligence in not giving warning of the approach of the train by a sufficient or proper signal. The testimony also shows that the approaching train from the south, for a considerable distance, might have been seen by the plaintiff, had he looked in that direction before stepping upon the track.

E. Watkins, for plaintiff in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

DAY Circuit Judge, after stating the foregoing facts, .

Under these circumstances, the question we deem it necessary to consider is, was the plaintiff, as a matter of law, guilty of a want of the exercise of ordinary care in stepping upon the track when the train must have been in plain view? The accident happened in the state of Georgia, and that statutes of that state are controlling. Numerous decisions have been made upon sections 2972 and 3034 of the Georgia Code, regulating this matter. This court had occasion in the case of Railway Co. v. Coggins, 88 F. 455, 32 C.C.A. 1, to consider them. Speaking by Judge Taft, the court said of those sections of the law:

'Sections 2972 and 3034, when read together, introduce a variation from the common law in one respect only. They declare first that a plaintiff shall not recover when the accident is caused by his own negligence. They further declare that, even if the defendant was negligent in such a way as to cause the injury, the plaintiff shall not recover, if, with the defendant's negligence as an existing condition of the situation, he could have avoided its consequences by ordinary care. So far these rules are the same as those established at the common law. Coasting Co. v. Tolson, 139 U.S. 556, 11 Sup.Ct. 653, 35 L.Ed. 270. Finally, however, they provide that, when the negligence of both parties is concurrent and contributes to the injury, then the plaintiff shall not, as at common law, be barred entirely, but may recover damages reduced below full compensation for the injury by an amount proportioned to the amount of the default attributable to him. The decisions of the Georgia court in construing these sections have not always been as clear and as intelligible as might be desired, but the foregoing coincides with the construction which has been put upon them by that court in the latest and earliest cases which have been called to our attention. Railroad Co. v. Luckie, 87 Ga. 6, 13 S.E. 105; Railroad Co. v. Johnson, 38 Ga. 409, 433.'

This construction of the Georgia statute seems in harmony with subsequent decisions in that state to which we have been cited, and was practically the view of the law taken by the learned judge who tried this case upon the circuit. While the Georgia statute permits a recovery in case of concurrent negligence, notwithstanding the negligence of plaintiff contributes in some degree, the damages being apportioned in consequence thereof, it nevertheless provides that, assuming the negligence of defendant to be established, plaintiff may not recover, if by the exercise of ordinary care on his part the injury might have been avoided. The learned judge at the trial left the question whether such ordinary care would have avoided the injury to the jury. The motion for a peremptory instruction in...