Hill v. Callahan

• Decision Date: 11 February 1889
• Citation: 8 S.E. 730,82 Ga. 109
• Parties: HILL v. CALLAHAN et al.
• Court: Georgia Supreme Court

8 S.E. 730

82 Ga. 109

HILL v. CALLAHAN et al.

Supreme Court of Georgia

February 11, 1889

Error from superior court, Floyd county; MADDOX, Judge.

Action by Anna Hill against D. Callahan and J. B. Redmond, for damages in negligently causing the death of her husband. Judgment for defendants, and plaintiff brings error.

Wright Meyerhardt & Wright, for plaintiff in error.

Dabney & Fouche, for defendants in error.

SIMMONS J.

Anna Hill brought her action for damages against Daniel Callahan and T. B. Redmond, wherein she alleged that on the 23d of December, 1886, the defendants were engaged in building a railroad, and, as contractors and builders thereof, had entire charge of the work and the employment of laborers, and of the manner of conducting the work; that they had employed Charles Hill, her husband, to work on said railroad as a laborer; that on the 23d of December the defendants ordered him to go to a fire near by, and thaw out a quantity of dynamite; that very near the fire "a box of dynamite caps had been placed, by order of the defendants, or their agents and employes, and said caps had been placed, in a reckless and negligent manner, so near the fire that there was great danger of their being thrown into the fire, or otherwise exploded; that, in a short time after her husband had reached the fire for the purpose of thawing out said blasting material, notice was given that a blast was about to take place; whereupon one Leadbetter, aged about fifteen years, and one of the employes of the defendants, rushed by the fire where her husband was standing, and caused said dynamite caps, which had been so negligently and recklessly placed near the fire by the defendants, and their agents and employes, to fall into the fire, causing an instantaneous explosion, and thereby, without any fault whatever on the part of her said husband, and on account solely and entirely of the negligence, recklessness, and criminal carelessness of said defendant in having said dynamite caps placed so near the fire, her said husband was wounded and killed." On the trial of the case the jury, under the charge of the court, returned a verdict for the defendants. The plaintiff made a motion for a new trial on the several grounds set out therein, which was overruled by the court, and she excepted.

The fourth and fifth grounds of the motion for a new trial will show the gravamen of the complaint of the plaintiff in error. The other grounds are similar to these; the same ideas being embraced in the instructions of the court complained of therein, and the same exceptions being made thereto. The fourth and fifth grounds are as follows "(4) Because the court erred in charging as follows 'It is incumbent on the plaintiff to show that deceased was without fault upon his part. You will look to the evidence in this case to see whether he was at fault in any way. If you should find he was at fault, that would defeat the recovery of the plaintiff.' The court did not correctly state the rule of law. Even if deceased was slightly at fault, plaintiff might recover. (5) Because the court erred in charging the jury as follows: 'Negligence is a question for you alone. You will look and see whether they [the dynamite caps] were placed there by order of Callahan or Redmond, or their agents, whom they had in charge of these explosives. If they were not placed there by Redmond or Callahan, or their agents, whom they had in charge of these explosives, these defendants would not be responsible for this accident."'

1. We will notice the fifth ground first. The exception to the instruction set out in this ground is that it was error because the court should have further charged that, if the caps negligently left the possession of the contractors or their employes in any way, it would have been negligence on their part, whether the caps were placed there by their order or not; it being their duty to see that the caps were safely kept." The rule of pleading is that ...