Cooper v. Mullins

• Decision Date: 31 March 1860
• Citation: 30 Ga. 146
• Parties: COOPER. v. MULLINS.
• Court: Georgia Supreme Court

30 Ga. 146

COOPER. v. MULLINS.

Supreme Court of the State of Georgia

MARCH TERM, 1860.

Case, in Fulton Superior Court. Tried before Judge Bull, at April Term, 1857.

This was an action' brought by James, Mullins against James F. Cooper, superintendent of the Western and Atlan-tic Railroad, to recover damages for an injury, received by the plaintiff, and resulting from a collision of trains running on said road.

Plaintiff proved by the attending physicians the nature and extent of the injury he received; that his left arm was broken in several places; the elbow was seriously and materially injured; that the injury was received in September, 1855, and that he was confined, by reason of said wounds, till the last of December thereafter; his elbow joint was still (at the time of the trial) stiff, and incurable in that respect; Dr. Dearing's bill for attention was about twenty-five dollars.

Plaintiff further proved, that he was in the employment of the Georgia Railroad, at the time of the injury, as an engineer; that he was formerly a machinist, and that he was incapacitated, by reason of said injury, for a machinist, but not for an engineer, but that he could not, as an engineer, be able to reverse an engine so promptly as before.

The circumstances under which the plaintiff went upon the Western and Atlantic Railroad, upon the occasion of receiving the injury, were as follows:

The machinist of the Georgia Railroad shop, in the city of Atlanta, was applied to by an officer of the Western and Atlantic Railroad for an engine and engineer, to go up the Western and Atlantic Road, to bring down from Chattanooga a train of cars, as that road did not have sufficient motive power to bring down the cars, which belonged to the Georgia Road, as fast as they were needed below; said officer saying that he wanted an engine and engineer to make a trip up the road after them. In consequence of this application, Mullins was sent up the road with an engine, with instructions from the Georgia Railroad to bring down only empty cars belonging to the Georgia Railroad. Plaintiff was willing to go, and was selected because he knew the Western and Atlantic Road, having made similar trips before. There was a general agreement between the two roads that such service was to be paid for, and for similar services before rendered the Georgia Road had been paid by the Western and Atlantic Road. This trip was not a gratuity; Georgia Road expected to be paid for the trip; plaintiff, while making this trip, was subject alone to the orders of the officers and agent of the Western and Atlantic Road.

Plaintiff further proved by the witness, Bruner, that, in making the trip under the circumstances above stated, on his return down with the cars, when about forty miles from where the accident occurred, he got behind with his train on account of his engine foaming, there seemed to be several trains coming down at the same time, and was, therefore, not suited to run in front. The witness, who was engineer of the front train, displayed a flag, which indicated that another train was following—a signal well known to railroad men. Plaintiff\'s train had the right to the track, even if he had been three hours behind the schedule time, the flag having preceded him; he was only about twenty-five minutes out of time when\' witness left him. There was no rule of the road which required regular trains which might be out of time to stop; the rule required other trains to wait for them and to keep the track clear. Plaintiff\'s train consisted of Georgia Railroad cars and a caboose belonging to the Western and Atlantic Road, and he was accompanied on the trip by a conductor of the Western and Atlantic Road, whose business it was to regulate the running of the train.

Plaintiff having closed, defendant read the depositions of Henry G. Cole, taken by commission, who deposed: That he had control of the engine and train at the Etowah embankment, in September, 1855; the engine and train were used for hauling earth into the embankment at the Etowah river; deponent and Kendrick were the contractors for said work; it was their daily practice to send the earth train after water to the station, about three miles and a half from the works; usually sent it after the express train; on the day of the collision, two express trains passed at schedule time, and we waited one hour and a half for the third, and finding our water was giving out, the engine was sent to the station for water; about fifteen minutes after it started, witness saw the train, of which Mulling was engineer, approaching; witness immediately took position at a conspicuous place, near the track, and several times made the usual sign for-stopping trains, called to the engineer and pointed to the pit, to show him that the earth train engine was not there; as he passed, witness called aloud and told him that the way-engine was on the track; plaintiff made a sign with his hand which witness understood to mean that he would run the earth en-gine to Alatoona siding. The sign made for stopping plaintiff was the usual sign for stopping trains. Plaintiff disregarded the signal, and his engine and the earth engine came together about three miles from the embankment. Witness walked to the place when he heard the collision, thinks neither engine was thrown from the track. The earth engine belonged to the Western and Atlantic Railroad, but was controlled by the contractors for doing the work at the embankment; don\'t think the engineers would have been hurt if they had remained on the engines.

The testimony being closed, counsel for defendant requested the court to charge the jury, that if plaintiff had hired himself to the Georgia Railroad, and that road had with his consent hired him to the defendant for the service in which he was employed at the time he received the injury, then plaintiff was the servant of defendant. That such contract need not be an express one; if in the usual course of dealing between them it had been customary for a compensation to be made for such services, then the law would imply a contract in the absence of proof of an express contract, and of any stipulation to the contrary. Which charge the court gave with this qualification, to wit: "But if the plaintiff was in the employment of the Georgia Railroad, and engaged in the business of that road for its benefit, and paid by that road for his services, the fact that he, during that trip, was subject to the orders of defendant, or its officers, and the fact that defendant paid the Georgia Railroad for said services, would not constitute plaintiff the servant of defendant in such sense as would bar his right to recover for injuries he received by the gross neglect and misconduct of the officers or employees of defendant, committed by them in the service of defendant.

To which charge counsel for defendant excepted.

The court, amongst other things, further charged the jury, that to entitle plaintiff to recover, it was not necessary for him to prove any specific pecuniary damages, but that they could find such damages (if any) as under all the circumstances of the case, and the extent and nature of the injuries, they thought he was entitled to, but that they could not in this case give vindictive damages—counsel, for defendant having requested him to charge that before plaintiff could recover, it was necessary for him to prove some pecuniary damages.

To which charge and refusal to charge, counsel for defendant excepted.

The jury found for the plaintiff thirty-five hundred dollars. Whereupon counsel for defendant moved for a new trial on the grounds of error in the charges and refusals to charge as above stated, and because the verdict was contrary to law and the evidence, and the damages found thereby excessive.

The court overruled the motion for a new trial, and counsel for defendant excepted and assigns said refusal as error.

Glenn & Cooper, and Bleckley, for plaintiff in error.

J. M. Calhoun & Wm. Ezzard, contra.

By the Court.—Stephens, J., delivering the opinion,

1. The general rule is, that whoever is injured by the negligence of a servant in his master's business, is entitled to redress from the master. The railroad, in this case, claims an exception against other servants of the same master. Such...