Georgia R. & Banking Co. v. Wood

• Decision Date: 16 July 1894
• Citation: 21 S.E. 288,94 Ga. 124
• Parties: GEORGIA RAILROAD & BANKING CO. v. WOOD et al.
• Court: Georgia Supreme Court

21 S.E. 288

94 Ga. 124

GEORGIA RAILROAD & BANKING CO. v. WOOD et al.

Supreme Court of Georgia

July 16, 1894

Syllabus by the Court.

The evidence being silent as to the specific duty of the servant of the railway company, but indicating that he was acting in the capacity of brakeman, and this servant, while the train was in motion, and he was upon it, having thrown a stone at a boy who had just attempted to swing to or climb upon the train, and who with others had previously been in the habit of committing or attempting similar trespasses; the stone being thrown after the boy had ceased attempting to trespass upon the train on the given occasion, and had retreated to private premises adjacent to the street, and while he was there endeavoring to conceal himself behind a post; and the stone by accident having missed the boy, and hit and injured another person, who was then on the same premises,--no presumption arises that at the time of throwing the stone the servant was acting in behalf of the company, or within the scope of his employment, as to anything then done or attempted to be done with a view to injure or affect the boy consequently, the company is not liable for the injury thus done to the third person.

Error from superior court, De Kalb county; R. H. Clark, Judge.

Separate actions by Anna Wood and her father against the Georgia Railroad & Banking Company. The two actions were consolidated and tried together, at which plaintiffs recovered a verdict. Defendant brings error. Reversed.

Jos. B Cumming, Bryan Cumming, and M. A. Candler, for plaintiff in error.

Burton Smith and J. T. Pendleton, for defendants in error.

SIMMONS J.

Anna Wood, a girl 12 years of age, was struck and injured by a stone thrown from a train of cars by an employe of the railroad company, and her father, as next friend, sued the company in her behalf for damages, and sued in his own behalf for the loss of her services. The cases were consolidated and tried together, and a verdict was rendered in each case in favor of the plaintiff. The railroad company made a motion for a new trial, which was overruled, and it excepted.

It appeared from the evidence that on the day of the injury, as the defendant's train was leaving Stone Mountain, a station on its line of road, a man standing on the top of one of the cars threw a stone at a boy who, with other boys, had just attempted to swing to or climb upon the train, and had...