Georgia Southern & F. Ry. Co. v. Cartledge

• Decision Date: 07 August 1902
• Citation: 42 S.E. 405,116 Ga. 164
• Parties: GEORGIA SOUTHERN & F. RY. CO. v. CARTLEDGE.
• Court: Georgia Supreme Court

42 S.E. 405

116 Ga. 164

GEORGIA SOUTHERN & F. RY. CO. v. CARTLEDGE.

Supreme Court of Georgia

August 7, 1902

Syllabus by the Court.

1. That, after an occurrence resulting in injury to one person another who is sought to be held accountable therefor took additional precautions to prevent others from being likewise injured, can neither justly nor logically be regarded as an admission on his part that he was negligent in not sooner observing such precautions. Prior decisions by this court virtually to the contrary reviewed and overruled.

2. It affirmatively appearing from the evidence in the present case that the proximate cause of the plaintiff's injury was his own independent act, for which there was no necessity and which was in no way brought about by any default on the part of the defendant company, he was not entitled to recover.

Error from city court of Macon; W. D. Nottingham, Judge.

Action by L. J. Cartledge against the Georgia Southern & Florida Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Hall & Wimberly and R. C. Jordan, for plaintiff in error.

Guerry & Hall and M. F. Hatcher, for defendant in error.

LUMPKIN P.J.

This was a suit for damages against the railway company by Cartledge, who set forth in his petition the following allegations of fact: "On the 30th day of June, 1900, he was in the employment of the United States government in the railway mail service, and was, in the course of his employment, on said day riding upon the train and in a car of the said company." On that day, "while on the railroad train of said company in the discharge of his duties as mail clerk on his car furnished by said road, *** the mail grab, which was fastened on the outside of said car, came in contact with a post standing upon the platform of said railway company at the station house at Sofkee." The result was that the "mail grab was turned from its fastenings to the side of said car and thrown down and upon the left hand of petitioner, who was at that time inside the car, where he had the right and where it was his duty to be, and where he then was in the exercise of all the care incumbent upon him. *** Petitioner's hand was terribly mutilated, wounded, and crushed; the bone in the first finger of said hand being broken [and] made permanently useless." The injury thus sustained by him "was caused by the negligence of said railroad company in erecting the said post too near the track of said railroad company, and allowing it to remain there." A recovery was had by the plaintiff in the court below, and the company is here complaining of a judgment denying it a new trial.

1. At the time of the plaintiff's injury the post above referred to "stood thirteen or fourteen inches from the side of the passing coach. The plaintiff was permitted to testify, over the objection of the defendant, that this post had been moved further back since the accident"; the objection urged against the admission of this testimony being that it was not "competent evidence for the purpose of showing negligence on the part of the defendant." Tested by rulings heretofore made by this court, this testimony was clearly admissible. In Railroad Co. v. Renz, 55 Ga. 126, it was held that, "Upon the trial of a suit against a street railroad company for an injury sustained by careless driving over a sharp curve and sudden elevation, it was competent to show that the defendant had altered the curve since the accident." A similar ruling was announced in Central R. R. v. Gleason, 69 Ga. 201. In Railway Co. v. Flannagan, 82 Ga. 580, 9 S.E. 471, 14 Am.St.Rep. 183, the question arose whether or not it was competent for the plaintiff to prove that after the homicide of her husband, who was run over and killed by an engine belonging to the defendant, "the engines of the company were run more slowly along the street which was the scene of the accident." Commenting upon the relevancy of evidence which had been introduced to establish that such was the fact, Chief Justice Bleckley, who delivered the opinion of the court, said (page 589, 82 Ga., page 472, 9 S.E. , 14 Am.St.Rep. 183), "There is much authority to the contrary, *** but we think consistency with our own decisions requires us to hold that it was admissible." Doubtless influenced by the intimation thus thrown out that the question presented, were it an open one, would admit of some doubt, counsel for the plaintiff in error in the present case asked and were granted leave to review these decisions. We have accordingly given them careful consideration, with the result that we are constrained to announce, after mature deliberation, that our faith in their correctness, which in the past had already been much shaken, has succumbed to the conviction that they cannot be defended either upon principle or by the weight of authority. We find upon investigation that they are not in accord with the rule which obtains in England. See Hart v. Railway Co., 21 Law T. Rep. (N. S.) 261. Nor are they in harmony with the consensus of judicial opinion which prevails in this country. See Railroad Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405, and cases cited on page 207, 144 U.S. , page 593, 12 S.Ct. 36 L.Ed. 405; Railroad Co. v. Parker, 5 C.C.A. 220, 55 F. 595; Paving Co. v. Odasz, 8 C.C.A. 471, 60 F. 71; Motey v. Marble Co., 20 C.C.A. 366, 74 F. 156; Southern Pac. Co. v. Hall, 41 C.C.A. 50, 100 F. 761; Railroad Co. v. Malone, 109 Ala. 510, 20 So. 33; Sappenfield v. Railroad Co., 91 Cal. 49, 27 P. 590; Hager v. Southern Pac. Co., 98 Cal. 309, 33 P. 119; Limberg v. Glenwood Lumber Co., 127 Cal. 598, 60 P. 176, 49 L.R.A. 33; Nally v. Carpet Co., 51 Conn. 524, 50 Am.Rep. 47; Harvey v. Mining Co. (Idaho) 31 P. 819; Holt v. Railway Co. (Idaho) 35 P. 39; Giffen v. City of Lewiston (Idaho) 55 P. 545; City of Bloomington v. Legg, 151 Ill. 10, 37 N.E. 696, 42 Am.St.Rep. 216; Howe v. Medaris, 183 Ill. 288, 55 N.E. 724; Railroad Co. v. Clem, 123 Ind. 16, 23 N.E. 965, 7 L.R.A. 588, 18 Am.St.Rep. 303; Board v. Pearson, 129 Ind. 456, 28 N.E. 1120; Railroad Co. v. Lee, 17 Ind.App. 216, 46 N.E. 543; Cramer v. City of Burlington, 45 Iowa 627; Hudson v. Railroad Co., 59 Iowa 581, 13 N.W. 735, 44 Am.Rep. 692; Beard v. Guild, 107 Iowa 476, 78 N.W. 201; Oil Co. v. Tierney, 92 Ky. 368, 17 S.W. 1025, 14 L.R.A. 677, 36 Am.St.Rep. 595; Downey v. Sawyer, 157 Mass. 418, 32 N.E. 654; Dacey v. Railroad Co., 168 Mass. 479, 47 N.E. 418; Turnpike Co. v. Case, 80 Md. 36, 30 A. 571; Thompson v. Railway Co., 91 Mich. 256, 51 N.W. 995; Hammargren v. City of St. Paul, 67 Minn. 6, 69 N.W. 470; Ely v. Railway Co., 77 Mo. 34; Hipsley v. Railroad Co., 88 Mo. 348; Alcorn v. Railroad Co., 108 Mo. 81, 18 S.W. 188; Corcoran v. Village of Peekskill, 108 N.Y. 151, 15 N.E. 309; Getty v. Town of Hamlin, 127 N.Y. 636, 27 N.E. 399; Clapper v. Town of Waterford, 131 N.Y. 382, 390, 30 N.E. 240; Lowe v. Elliott, 109 N.C. 581, 14 S.E. 51; Skottowe v. Railway Co., 22 Or. 430, 30 P. 222, 16 L.R.A. 593; Farley v. Veneer Co., 51 S.C. 222, 241, 28 S.E. 193; Railroad Co. v. Wyatt, 104 Tenn. 432, 58 S.W. 308, 78 Am.St.Rep. 926; Railway Co. v. McGowan, 73 Tex. 356, 11 S.W. 336; Railway Co. v. Hennessey, 75 Tex. 155, 12 S.W. 608; Fordyce v. Chancey, 2 Tex. Civ. App. 24, 21 S.W. 181; Bell v. Shingle Co., 8 Wash. 27, 35 P. 405; Carter v. City of Seattle, 21 Wash. 585, 59 P. 500; Anderson v. Railway Co., 87 Wis. 195, 58 N.W. 79, 23 L.R.A. 203; Jennings v. Town of Albion, 90 Wis. 22, 62 N.W. 926; Green v. Water Co., 101 Wis. 259, 77 N.W. 722, 43 L.R.A. 117, 70 Am.St.Rep. 911. See, also, authorities cited and commented on in note appended to the case of Railway Co. v. Weaver (Kan.) 57 Am.Rep. 183-187.

In the New York Reports instances are to be found where some of the tribunals of that state at one time strayed from the path which all good courts should travel; but the true doctrine was expounded by its court of appeals in the case of Baird v. Daly, 68 N.Y. 547, and has since been consistently observed. More recently there have been other converts to the new faith which we now feel called upon to embrace. Notably among these is the supreme court of Minnesota; it having in the case of Morse v. Railway Co., 30 Minn. 465, 16 N.W. 358, formally reviewed all of its prior decisions bearing on the point under consideration and pronounced them unsound, saying of the rule which had been laid down, "We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence." We may also point to the fate which befell an early Colorado case (Railway Co. v. Miller, 2 Colo. 442), the ruling in which is no longer given recognition by the courts of that state. Electric Co. v. Lubbers, 11 Colo. 505, 19 P. 479, 7 Am.St.Rep. 255; Railroad Co. v. Morton, 3 Colo. App. 155, 32 P. 345. The supreme court of New Hampshire has also reversed its position on the question. See Aldrich v. Railroad Co., 67 N.H. 250, 29 A. 408, in which that court overruled a prior decision in the case of Martin v. Towle, 59 N.H. 31, to the effect that it was competent for the plaintiff to prove that, after he was injured by the overturning of a carriage belonging to the defendant, the latter discharged the driver thereof. So far as we have been able to ascertain, the courts of but two states still adhere to the view that one who is sought to be held accountable for an injury sustained by another cannot take additional precautions to prevent others from being likewise injured, without thereby tacitly admitting that such precautions should sooner have been adopted. Railroad Co. v. McKee, 37 Kan. 592, 15 P. 484; Smelting Co. v. Tinchert, 5 Kan. App. 130, 48 P. 889; McKee v. Bidwell, 74 Pa. 218; Lederman v. Pennsylvania R. R., 165 Pa. 118, ...