Georgia R. & Banking Co. v. Nelms

• Citation: 9 S.E. 1049,83 Ga. 70
• Parties: GEORGIA RAILROAD & BANKING CO. v. NELMS.
• Decision Date: 31 July 1889
• Court: Georgia Supreme Court

9 S.E. 1049

83 Ga. 70

GEORGIA RAILROAD & BANKING CO. v. NELMS.

Supreme Court of Georgia

July 31, 1889

Error from superior court, Rockdale county; BOYNTON, Judge.

J. B Cumming, A. C. McCalla, and Bryan Cumming, for plaintiff in error.

J. N Glenn and A. M. Speer, for defendant in error.

SIMMONS J.

Nelms brought his action against the Georgia Railroad & Banking Company for damages, in which he alleged, in substance, that he was employed by said company to assist it in changing the gauge of its track, and that the company furnished him and other employés with certain tools and implements with which to take up the iron rails and refasten them to the cross-ties; that hammers of certain shapes, weights, purity of steel, and of the proper temper were required in order that such work should be done with safety and dispatch; that the petitioner was furnished with a hammer to drive spikes that he believed he had been furnished with one of the proper temper, etc.; and that, knowing nothing to the contrary, he entered upon such work under the direction and control of said company's officers, and while so engaged in drawing spikes for said company he was hurt, wounded, and maimed by the breaking of the hammer so furnished him, said breaking causing pieces thereof to fly off with great force and violence, a piece striking the knee-joint of the petitioner which penetrated and entered into said knee-joint, causing great pain, suffering, etc., and permanently injuring said knee, and a piece also striking him near the eye, imbedding itself deep in the flesh near the eye-ball, which also gave him great pain and uneasiness, and endangered the loss of the sight of said eye,--by reason whereof he was damaged, etc. On the trial of the case the jury returned a verdict of $2,000; a motion was made for a new trial, which was overruled, and the defendant excepted.

The only ground of the motion for a new trial, which it is necessary to notice is the ground that the verdict was contrary to law and to the evidence. The evidence, as shown in the record, is, in substance, as follows: That the plaintiff was employed by the company to assist in changing the gauge of the railroad; that he worked under Brooks, who was the boss of the hands; that Brooks put him to work with a hammer to drive spikes, directing him to drive up the spikes where they were bent under the iron, and that he instructed him, where he found a spike that was not down and was bent, to turn the small face of the hammer down, and put it on the head of the spike and drive it up. Thus the hand with whom he was working driving spikes used his hammer as a punch, putting its small face on the head of the spike, while the plaintiff with his hammer struck the upturned large face of the hammer which was held on the spike, and the spike was in this way driven up. In doing this a piece of his hammer burst off, a part of it striking him on the knee, and another piece on the right eye. All the other hands used their hammers in the same way. He was hurt about 9 o'clock in the morning, having commenced work about 5 o'clock. Other hammers broke besides his, but he did not know whether any broke before he was hurt or not. His hammer was a new one, and some of the others might have been old ones. He never had seen any hammers break before that time. He had worked on other railroads before, and had done this kind of work. He did not examine the hammer "any more than just going to take up a tool to work with." He did not see anything the matter with it. Two of the railroad hands who were at work on the same day, and at the same place with the plaintiff, testified for him. One of them testified as to pieces flying off of the hammer. He said they "got to flying like thunder." "They were flying with force. They could hear them whistling." That Brooks told them to "work up." Most of the hammers burst,--their faces split or shelled off. Some of them were old and some of them new hammers; nearly all of them broke. They battered on them "a right smart while" before they commenced bursting. The hammers looked to be all right when they picked them up, and looked to be first-class hammers, and "they" said they were first class. The other witness testified as to several of the hammers breaking. He said he thought his was the first to break; that he could not hit the spikes with his hammer, and he got a new hammer out of the car which did not break; that he paid no attention to the hammers to see whether they were breaking or not; that if two pieces of steel struck together, and they were very hard, they were likely to break.

This case seems to have been tried under section 3033 of the Code which declares that "a railroad...