Ferguson v. The Columbus

• Decision Date: 31 October 1885
• Parties: Ferguson, next friend. vs. The Columbus and Rome Railway.
• Court: Georgia Supreme Court

75 Ga. 637

Ferguson, next friend. vs. The Columbus and Rome Railway.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Evidence. Res Gestae. Railroads. Negligence. Nonsuit. Before Judge Willis. Muscogee Superior Court. May Term, 1885.

Sarah Ferguson, as next friend of Isabel Ferguson, brought suit against the Columbus and Rome Railway for damages for a personal injury. The testimony on behalf of the plaintiff showed, in brief, as follows: The defendant's turn-table, which was located in its yard, in Columbus, was not locked or fastened. The yard belonged to the company and was used for railroad purposes. It wasfenced in, but the gates were down, and people could pass through it. Quite a number of people lived in the vicinity. Isabel was a child of ten years of age. Her father was night watchman at the defendant\'s yard. A short time before the injury, the railroad authorities requested him to notice about the yard in the day time, as they had moved the depot from this yard. He was not expected to keep awake both day and night, but was allowed to go to town in the day or go about. Sometimes he slept in the yard and sometimes in the porch of the next house. He was told to notice in the day-time that no one stold cross-ties or things of that sort. On the morning of the injury, he left his son, thirteen years of age, at the yard, to keep children from throwing rocks and breaking out the window lights. The child\'s mother sent Isabel with the boy\'s breakfast, and the father knew she had gone. A witness testified that he saw some little boys at the turn-table, one of whom was pushing it around, and he made them get away. He was about a hundred yards from the place of the injury. He saw several people gathered around the place, and went there. He found the little girl lying on a plank near the turn-table, which was bloody. There were two or three pieces of flesh as large as two fingers and a good deal of fresh blood on it, and more blood and flesh scattered in the bottom of the pit where the table revolved. " It seems that the table turned a little piece after the child ran over it; it got to turning and kept rolling, and blood was scattered along a good deal." [It was offered to show by this witness what the child said when he arrived at the scene of the injury, but this was rejected.] The child\'s legs were terribly bruised and lacerated, the flesh being stripped off to the bone in places. When the turn-table revolves, so that the tracks come together, the iron is very close together, and this witness noticed that the ends of the table were smeared with blood. He stated that the child could not have fallen off and hurt herself as she was hurt, unless the table was in motion; that he didnot know whether she was on the turn-table or not; and that there was no one about the table when he got there, but after he got there, a little boy shoved it, and lie drove him away. The child\'s mother and the doctors who attended her also testified as to the extent and nature of the injury. It was also shown that the turn-table was very easily turned; that a child could turn it and ride on it; and that when it was turned half way round, a person could walk round in the pit, but when turned in the direction of the track, the space was hardly as wide as a man\'s hand. There were no fastenings on the turn-table.

To account for the child's absence from court, her mother testified that she was in Alabama about live miles from a town; that she was unable to walk to the railroad, and the mother did not have the means of hiring a conveyance.

On motion, the court granted a non-suit, and the plaintiff excepted, and assigned error thereon and on the rejection of the child's sayings.

Louis F. Garrard, for plaintiff in error.

Peabody, Brannon & Battle, for defendant.

Hall, Justice.

The plaintiff, an infant of ten years of age, instituted her suit against the defendant to recover damages for an injury she suffered by reason of its negligence in leaving the turn-table, belonging to its road, exposed in a public and frequented place in the city of Columbus, without enclosing it by a sufficient fence or securing it by locks or other fastenings. During the progress of the trial, she proposed to ask a witness who had reached the spot a few minutes after the injury occurred, and who had testified to circumstances tending to show that the turn-table was the instrument by which she was hurt, such as the appearance of fresh, warm bipod, and pieces of flesh,...