Crine v. East Tenn.

• Decision Date: 12 March 1890
• Citation: 11 S.E. 555,84 Ga. 651
• Parties: Crine. v. East Tennessee, v. & G. Ry. Co. Supreme Court of Georgia.
• Court: Georgia Supreme Court

11 S.E. 555

84 Ga. 651

Crine.

v.East Tennessee,

v.& G. Ry. Co. Supreme Court of Georgia.

Supreme Court of Georgia.

March 12, 1890.

East Tennessee, V. & G. Ry. Co.

Carriers—Passengers on Freight Train.

One who takes passage on a freight train rather than wait a few hours for a passenger train, and is injured by a jolt caused by coupling cars, cannot recover, where the jolt was not caused by the negligence of the company's servants, but was usual and necessary in coupling the cars.

Error from superior court, Appling county; Atkinson, Judge.

The official report referred to in the opinion is as follows:

Action by Marcus Crine against the East Tennessee, Virginia & Georgia Railroad Company for damages for personal injuries sustained by him while a passenger on one of its trains. The evidence for the plaintiff tended to show that the train on which the plaintiff was hurt was a freight train of defendant, which plaintiff boarded on January 4, 1887, at Baxley, about 4:30 o'clock in the afternoon, to go to Lumber City. He paid his fare to Lumber City. At Prentiss, a station between Baxley and Lumber City, there were various movements of the train backward and forward, by one of which plaintiff was knocked from the seat in the cab which he was oc-cupying, and thrown against the brake-wheel in the cab, and seriously hurt. This occurred after dark, about 5 o'clock in the evening. There had been a lantern in the cab, but the conductor took it out, so that the cab was not lighted at the time of the injury; and at that time there was no train hand in the cab. At the time of the accident, plaintiff was sitting about four or five feet from the top of the brake-wheel, which brake-wheel was five or six feet from the floor, and two or three feet higher than the seat plaintiff was on. There were other passengers in the cab. The train came back with a very heavy force, and it was by reason of this that plaintiff was thrown on the brake-wheel. The plaintiff testified, among other things, that he believed, if the train had been handled right, and a brakeman had been in there to put on the brake, the accident would have been avoided. The brakeman had been left behind at Jessup. Plaintiff was knocked senseless, and when he came to his senses was on the seat, and two gentlemen were trying to assist him. He further testified: " 1 guess the jerk was from stopping too suddenly. They started off, then came this sudden jerk or stop. That is all I know. It just stopped. I was hurt when they stopped. It was a jerk from the car or engine; and the whole train moved, and then stopped right at once, and threw me, as well as the balance of the passengers, out of their seats." Other men in the car were thrown down, and plaintiff heard scrambling and screaming, and one or more passengers talking about how rough it was, and how the road was carried on. Plaintiff had frequently ridden on freight trains on this road; took this train because he did not want to get up at 2 o'clock in the morning to take the regular passenger train. He knew there would be a passenger train that night, but did not know when it would arrive, as it never came on time. Plaintiff was the only one hurt, that he knew of. He told the conductor he was hurt, and the conductor did all he could for him, —made him a fire, but had no water to give him, and plaintiff asked him for water. A person who was standing on the steps leading from the bottom to the top part of the cab testified that a person with whom he was talking was knocked down the steps, and he himself would have fallen, if he had not had hold of the banister, and that he heard some scrambling and groaning, like some one was hurt; and some one said it was a drummer or an Irish peddler. Plaintiff was a drummer. The train came back with considerable force, and this witness thought the train was taking on cars, and coupling them. There was testimony as to the extent of plaintiff's injuries, his loss of time, age, expectancy of life, etc., not now material to be reported. The testimony for defendant tended to show that the jerking and jolting of this train was not unusual, and was such as was customary in handling freight trains, and that a freight train, because of the manner in which it was made up, could not be handled with the smoothness and ease of a passenger train. The conductor denied that his attention was called at the time to plaintiff being injured, or that he made a fire for plaintiff, but testified that he did not hear of any one being injured until long after, and was surprised when he heard that it was claimed that any one was hurt. The brakeman got off the train at Wheaton, with the permission of the conductor, which left one man short. If he had been on the car and put on the brake the shock would have been lessened. If it was coming back against the cab with the brake on, it would be greater, as there would be more resistance. There was also testimony for the defendant tending to show that, from the position planitiff was in at the time of the alleged injury, he could not have been hurt as he testified. One of the persons who was a passenger on the train testified that he did not remember about anybody being hurt. Another testified that there was a slight shock, and in a short time his attention was called to a man sitting on the opposite side, and one Graham said, "That man must be sick;" and they went over, and it was plaintiff, and plaintiff said he was hurt. Witness offered plaintiff something to...