Fulton County St. R. Co v. Mcconneul

• Decision Date: 19 October 1891
• Citation: 13 S.E. 828,87 Ga. 756
• Parties: Fulton County St. R. Co. et al. v. McConneul.
• Court: Georgia Supreme Court

13 S.E. 828

87 Ga. 756

Fulton County St. R. Co. et al.

v.McConneul.

Supreme Court of Georgia.

Oct. 19, 1891.

Street Railways—Construction of Road—Negligence of Contractor.

1. Where a street-railway company, having authority under its charter to construct a railway in the public street, does the work by an independent contractor, and an injury to a person passing along the street is caused by the negligence of a servant of the contractor, which negligence consisted in unnecessarily and improperly laying down loose iron rails in advance of the workmen engaged in constructing the track, the contractor is liable for the consequences of such negligence, but the railway company is not, the latter company not having reserved any control over the conduct of the former in executing the work.

2. Tho evidence warranted the recovery against the contractor, and the judgment is affirmed to that extent, but reversed so far as the railway company is concerned.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action for personal injuries by William McConnell against the Fulton County Street-Railroad Company and the Thomson-Houston Electric Company. Judgment foi plaintiff against both defendants jointly. Defendants bring error. Affirmed as to the electric company, and reversed as to the railway company.

Candler & Thomson and N. J. & T A. Hammond, for plaintiffs in error.

J. L. McWhorter, R. Arnold, and R. R. Arnold, for defendant in error.

Simmons, J. The Fulton County Street-Railroad Company obtained a charter from the legislature authorizing it to build a street railroad through certain streets of the city of Atlanta when it should obtain the consent of the municipal authorities. It seems this consent was obtained by the company, and it made a contract with the Thomson-Houston Electric Company, another corporation, whereby the latter undertook to furnish all the material and the entire construction of the road, with out any direction or control reserved to the street-railroad company. During the progress of the work upon West Peachtree street, the contractor laid the iron rails about eight feet apart on each side of the proposed road-bed, a considerable distance beyond and ahead of the place where its hands were taking up a pavement and preparing the road-bed for the cross-ties and iron. The rails thus laid furnished a continuous line on each side of where the road-bed was to be placed, for a considerable distance ahead of the hands. McConnell was riding on horseback upon that street, and, in attempting to cross the street where these iron rails were laid, the horse struck his foot against one of the rails, and fell, seriously injuring McConnell. He brought his action for damages against the street-railroad company and the Thomson-Houston Electric Company jointly. On the trial of the case, under the charge of the court, the jury returned a verdict against both defendants. A motion for a new trial was made, and overruled.

1. The first three grounds of the motion for a new trial are the usual ones, that the verdict was contrary to law, evidence, etc. The fourth ground complains that the verdict was contrary to law and evidence, in this: that there was no evidence showing that the injury to the plaintiff was occasioned by any act or acts of the defendants, or either of them, set forth in the declaration. There was sufficient evidence, in our opinion, to authorize the jury to find a verdict against the Thomson-Houston Electric Company. The evidence shows that the foreman of the squad of hands who were constructing the road upon this particular street had the iron rails taken from the gutters on each side of the street, and placed in the middle of the street for a considerable distance in advance of the place at which the hands were at work. The foreman testified, in substance, that it would have been safer to have let the rails remain in the gutters until they were actually needed; but to expedite the work, and to mark the lines to guide the hands in taking up the Belgian blocks and making the proper excavations, he had the rails taken from the gutters, and laid in the middle of the street in advance of the work, and that it was not necessary at that time to have placed the rails in the middle of the street; that the lines to guide the hands might have been made by other means, which would have been safe. His...