Higgins v. The Cherokee R.R.

• Citation: 73 Ga. 149
• Parties: Higgins. vs. The Cherokee Railroad.
• Decision Date: 30 September 1884
• Court: Georgia Supreme Court

73 Ga. 149

Higgins. vs. The Cherokee Railroad.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

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Practice in Supreme Court. Railroads. Damages. Negligence. Practice in Superior Court. Attorney and Client. Jury and Jurors. Non-suit. Common Carriers. Before Judge Branham. Polk Superior Court. February Term, 1884.Thomas Y. Higgins brought his action against the Cherokee Railroad Company to reco544aw46qw46rver $10,000.00, as damages for a personal injury, alleged to have resulted to him from the negligence of the defendant.

On the trial, plaintiff testified, in brief, as follows: On Sunday, May 2, 1880, plaintiff was at Rockmart on a visit. Defendant's train came up. A Mr. Bullock, who was on board, and whom plaintiff had not seen for some time, hallooed to him to get on and go to Cedartown with them. Plaintiff boarded the train, and the car which he was on being crowded, he and others went forward to the next car. This was immediately in the rear of the tender of the engine. It was a flat car, without sides or covering, and with benches across it. Plaintiff was near the rear of this car. A thin spark or scale of iron from the engine stuck in his right eye. At the time, it did not hurt him very much, but when he arrived at Cedartown, it was paining him con-siderably. The pain became very severe, so that plaintiff was in bed for three or four months; he suffered great pain, and ultimately lost the sight of that eye entirely, and the sight of the other eye was also much impaired. He called in a physician that night or the next day, and subsequently went to Atlanta, where he was treated by other doctors. He paid $25.00 to one physician, and owed $50.00 to another for a single operation, besides other bills. His expenses and loss of time while sick would amount to $400.00 or $500.00. Prior to the injury, he had been engaged in different occupations, as carpenter, whiskey-seller, seller of beef and buyer of cotton. When he worked out. he never did so for less than $50.00 per month He had a family, consisting of himself, his wife and two children. Since the injury, he cannot work after night, and is unfitted by his defective vision for the pursuits which he formerly followed. Several years prior to the injury, plaintiff had worked as a train-hand on the road. The cars then ran from Cartersville to Rockmart, and the train then ran on Sundays. On the day of the injury, there were four or five flat cars composing the train, but no passenger car; all appeared to be full. He did not see any convicts on the train, nor did he see any ladies. He did not pay any fare, because none was asked of him; would have paid it if asked. He denied having any conversation with one Vandiver about riding on the train. Had heard of persons having their eyes hurt by riding on trains, but not from riding near the engine. The engine had no spark-arrester; it may have had one on that day, but not since; he has examined it since, and it has none. He saw nothing unusual about the running of the train that day. The engine was the newest one they had on the road. In February, 1880, plaintiff had ridden on the same train, but then rode in the cab; thought it was the same engine. He denied intemperate habits, but said he " took a dram.\'\' At the time of the injury, plaintiff was thirty-four years of age. Plaintiff closed. Defendant moved for a non-suit, onthe ground that the injury was not attributable to any negligence on the part of the defendant; that it was not such an accident as the company could foresee and pro vide against; and that the damage was too remote. The motion was overruled.

Later in the trial, plaintiff introduced other evidence, to the effect that his expectation of life was about thirty one years; that from childhood he had had some inflammation in the lids of his eyes, but his sight was good; that he complained and seemed to be in considerable pain. One witness testified that he extracted a cinder from plaintiff's eye which was stuck in the back, and that the cars were full of persons when the accident occurred. A witness for the plaintiff testified that there was an excursion on the day of the accident. There was also other evidence confirmatory of that already detailed.

The evidence for the defendant was, in brief, as follows: It was not usual to run trains on Sunday on defendant's road. On this occasion, certain convicts, under the control of Col. C. B. Howard, were to be carried to work on a cut or grade on the road. They were expected in Cartersville on Saturday, but failed to arrive, and were carried over defendant's road on Sunday. There was no excursion. There was a passenger coach attached, and about twenty paying passengers, besides four non-paying ones, including the plaintiff, were on board. The convicts were not allowed to ride in this coach, but were carried on the flat cars. The conductor testified that he usually carried about twenty along the line, and that he had carried eighty passengers at one time, but that that was a full double load, every seat and the aisles being full. The engine used at the time of the accident to plaintiff was a new one, having been in use only a few months. It was a wood-burner of good make, and had a spark-arrester, such as is usual. Near the mouth of the smoke-stack there was a hood or iron piece shaped somewhat like an umbrella, against which the steam from the exhaust pipes, carrying with it thesmoke and cinders, struck. This had a tendency to throw to the bottom all heavy particles, and subsequently they would be cleaned out of the smoke-stack. Above this was a wire net, having apertures one-eighth of an inch in size, so that nothing larger than this could escape. Some sparks and cinders escape from all engines; this cannot be helped. Cotton had frequently been hauled directly behind the engine without accident from sparks. The president and conductor of the defendant testified that they never heard of any serious personal injury from engine sparks before. Plaintiff and Vandiver, the conductor of defendant, had worked together on the road. On the evening before the accident, plaintiff told Vandiver that he would like for the latter to get him a job, and Vandiver said he would do anything he could. On the evening of the accident, plaintiff asked Vandiver to let him go up to Cedartown, that he might see Mr. West, the president of the road. Vandiver assented, and carried plaintiff free of charge, as is generally done among railroad men. He invited plaintiff into the passenger car at the rear of the train where there was room, but plaintiff said he had not been over the road since it was built, and wanted to see the country; that he would go out on the flat car and ride there. Vandiver told him, " all right;" that he would go back in the passenger car, and would join him as soon as he had finished. About two and a half miles from Wim-berley\'s hill, the conductor noticed plaintiff wiping his eye, and the latter said that he had a cinder in it. On the day previous, however, the conductor had noticed plaintiff wiping his eyes with a silk handkerchief, and that they were very red and running; plaintiff said they were sore. On arriving at Cedartown, Vandiver introduced the plaintiff to West, but the latter said he did not have time to talk to him, and plaintiff returned to Rockmart that evening. The train was run in the usual manner on that day. After the accident, plaintiff remained about Rockmart for some days, and was drinkingwhiskey; it was his habit to drink some. There is more likelihood of getting cinders in one\'s eyes and getting one\'s clothing burned on a flat car than in a coach. It is not customary to haul passengers on flat cars, but in coaches.

The jury found for the defendant. Plaintiff moved for a new trial, on the following grounds:

(1.) Because the verdict is contrary to the evidence, against the weight of the evidence, and is without evidence to support it.

(2.) Because said verdict is contrary to law, and to the principles of practice and equity.

(3.) Because counsel for the defendant, in the argument of the case before the jury, were allowed to discuss the importance and beneficial effects of railroads upon the country; and when counsel for the plaintiff, in the commencement of his argument, began tp allude to the great power and influence of railroad corporations, and stated that " the contest between the plaintiff and the defendant was an unequal one, " the court said, "Confine yourself to the case; I cannot permit you to discuss the parties."

(4.) Because the court refused to allow the plaintiff to prove by the witness, Charles West, that the defendant was worth the sum^*of two to three hundred thousand dollars. The witness so stated in answer to plaintiff's question, and, on motion of defendant's counsel, the court ruled out the testimony as irrelevant.

(5.) Because the counsel for defendant, after the plaintiff had closed his case, made a motion for a non-suit, and the court permitted the argument on said motion for a non-suit to be had " Tin the presence and hearing of the jury. [Note by the court: here was no request or suggestion by any one that the jury should be sent from the courtroom. The motion, of course, was refused."]

(6.) Because the court did not state to the jury the issues and charges, as contained in the declaration, and, though requested to do so by plaintiff's counsel, failed to do so. [Note by the court: "Reference is made to the chargehereto attached, as to what was said and done in reference to this ground; nothing, except what is stated in the charge on this subject, was said or done, and there was no suggestion that the direction to the jury to look to the declaration for this purpose was insufficient.]

(7.) Because the court stated to the jury that "the defendant pleads the general issue, which is a denial of the plaintiff's cause of action, and says that there was a passenger coach on the train...