Coggin v. The Cent. R.R. Co.

• Citation: 62 Ga. 685
• Parties: Coggin v. The Central Railroad Company.
• Decision Date: 28 February 1879
• Court: Supreme Court of Georgia

62 Ga. 685

Coggin v. The Central Railroad Company.

Supreme Court of the State of Georgia

(February Term, 1879.)

62 Ga. 685 Railroads. Master and servant. Contracts. Evidence. Before Judge Grice. Bibb Superior Court. April Term, 1878.

On October 5, 1875, Coggin commenced suit against the Central Railroad to recover $10,000.00 as damages for a personal injury.

The declaration was in case, and alleged, in substance, that plaintiff was an employee of the Western Union Telegraph Company, and as such was engaged on the 10th of May 1870, in unloading poles from defendant's cars, for repairing the telegraph line along defendant's road, between Macon and Atlanta —that defendant had contracted with said telegraph company to safely transport the said poles and other materials for such repairing and, also, plaintiff and the other servants and agents of said company employed about this work, and to give them opportunity safely to unload said poles and materials where the same were needed along the line—that said defendant did not so safely transport plaintiff while so employed, and did not give plaintiff an opportunity safely to unload said poles where the same were needed, but, on the contrary, while plaintiff was so engaged on said cars at the date aforesaid, and while the engine was proceeding at the usual and proper rate of speed for the performance of plaintiff's duties, the said defendant, by its agents and employees, carelessly, negligently and unnecessarily increased the speed of said engine and carsby a sudden, unnecessary and improper jerk, without giving any *signal of warning to plaintiff, and caused him, without any negligence on his part, to be violently jerked and thrown from said train under the wheels upon defendant\'s railway track, whereby plaintiff\'s body was badly bruised and cut, one leg broken, and great pain and suffering inflicted, and that, in consequence of such injuries, plain-tiff has been permanently disabled from laboring as formerly. Plaintiff attained the age of twenty-one February 8, 1875. The defendant pleaded the general issue.

The facts presented by the testimony for the plaintiff, so far as material to the points decided, were, in brief, as follows:

On May 10th, l870, plaintiff was in the employ of the Western Union Telegraph Company distributing poles between Macon and Atlanta He was, that day, on one of defendant's trains which was carrying the poles to be distributed between these points. He received an injury caused by the carelessness of the engineer in taking up the "slack" of the train. He was engaged at the time in throwing off the poles. The engine started without giving any signal. In taking up the "slack" of the train it jerked him between the cars, and he was injured. The train was moving along slowly, and the employees of the telegraph company, including the plaintiff, were engaged in throwing off poles at intervals of seventy or eighty yards. He was standing up, and the car was in motion, when he was thrown off. The car on which he was bad on it twenty-five green poles. The bottom poles nearest the edge were thrown off successively as the train slowly moved along. At the time of the injury plaintiff was moving back some of the top poles so as to get at the others. Five men were on each car. Of these three would throw off and the other two would keep the poles from rolling down, and hand them to the others as they were needed. Plaintiff was one of the two to keep the poles from rolling down. He had hold of the big end of a pole lifting it up to cast it back on the pile when he was thrown off by the jerk. *The poles were placed on the car with the heavy ends to the rear of it. The heavy end of the one nearest the edge of the car would be slipped off on the ground, and by its own weight and the movement of the train, the pole would be pulled off. There was no lifting done in throwing them off. The train would not stop at all, but keep moving all the time. The engineer was at fault in throwing on the steam which gave the train the sudden jerk. He had but a short time to distribute the poles and make connection with the passenger train at the next station, about six miles off, and was consequently working under some excitement. When steam is taken off the cars run together so as to touch the bumpers, but they come together gradually, and when steam is put suddenly, the shock of the couplings causes a sudden jerk to each car, but a skillful engineer avoids the trouble. One Awtry had charge of the hands who were employed by the telegraph company. He was on the engine at the time of the accident. There was also a conductor with the train who controlled its movements.

There was also introduced in evidence for the plaintiff, a contract between the Macon and Western Railroad Company and the American Telegraph Company, executed on June 12th, 1866, which contained the following provision "The party of the first part also agrees to transport, free of charge, the materials and men of the party of the second part when engaged in the construction, repairing, inspecting and superintending the telegraph line, so long as the party of the second part shall faithfully observe and fulfil the conditions and provisions in this agreement contained and by the party of the second part undertaken and agreed to be done."

The evidence for the defense presented the following facts: The conductor, engineer, fireman, wood-passer and Awtry, foreman of the hands of the telegraph company, were on the engine at the time of the accident. Nothing unusual occurred toproduce the accident. The train was moving slowly and the engine was being run carefully. *Awtry had control of his men and directed the conductor as to what speed should be run. The conductor followed his instructions as closely as possible. The train was moving up grade when the plaintiff was hurt and it is impossible to jerk the cars when thus running. To produce the "jerking" the couplings have all to be together, and this can only happen when stopping on a level or running down grade.

By an act of the general assembly passed in August, 1872, the union and consolidation of the Macon and Western Railroad Company with the defendant, under the name and charter of the latter, was authorized and provided for. See acts of 1874, p. 351.

The jury found for the defendant.

The plaintiff moved for a new trial on the following grounds:

1. Because the verdict of the jury is contrary to the evidence.

2. Because the verdict of the jury is contrary to the law and the evidence.

3. Because the court erred in charging the jury, that if the plaintiff was injured by reason of a danger or risk that was incidental to his employment on the train that day then he cannot recover.

4. Because the court erred in charging the jury, that if the plaintiff was injured by the ordinary jerk or motion of the train, while he was standing on an open platform car, having a heavy pole in his arms, then he cannot recover.

5. Because the court erred in charging the jury, that if the train from which the plaintiff was thrown, although the property of the Macon and Western Railroad, and being run by the employees of the company, was in charge of and under the control of the Western Union Telegraph Company or its agents, and run by its direction and for its benefit and use, and the plaintiff was an employee of the company, engaged in the sameservice as was the train, in transporting and delivering the telegraph company\'s poles *along the line of railroad, and received the injuries he now complained of, he cannot recover from the Central Railroad Company, provided the plaintiff knew the train was so used by the telegraph company.

6. Because the court refused to give in charge the followingwritten request of plaintiff\'s counsel, to-wit: "Under the written contract between the telegraph company and the railroad company, which has been put in evidence, the railroad company was liable for the proper transportation of the men and materials of the telegraph company. If plaintiff, as one of the employees of the telegraph company, was rightfully on the train under this contract, and if he was injured by the improper or careless conduct of the engineer of the railroad, then the railroad company is liable for the injuries thus done plaintiff."

The motion was overruled and a new trial refused. Plaintiff assigns such judgment as error.

Marshal J.Clark; Bacon & Rutherford; E. F. Best, for plaintiff in error, cited Code, sec. 3033; 30 Ga., 22, 23, 27; 18 Ib., 680; 34 Ib., 330.

R. F. Lyon, for defendant in error, cited acts of 1872, p. 351; 46Ga., 4l7; 29 Conn., 548; 25 Ala., 659; 2 Seld., 435.

BLECKLEY, Justice.

1. It may be doubted whether there is any way for a chartered railroad company, without special permission by statute, to let out one or more of its locomotives and cars to be run by steam upon the railway track of the corporation, and withdraw itself from responsibility for care and diligence in the manner of running. The charter privileges are granted to the corporation, and in accepting them, it assumes the correlevant obligations. One of the latter, and a very important one, where steam power is employed, is the use of due care and diligence to guard against injury *to person or property. When the corporation chooses to part temporarily with the direct control of some...