Jackson v. Georgia, S. & F. Ry. Co.
| Decision Date | 20 February 1909 |
| Citation | 63 S.E. 841,132 Ga. 127 |
| Parties | JACKSON v. GEORGIA, S. & F. RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
By section 5536, subsec. 1, of the Civil Code of 1895, as it stood prior to the act of 1905 (Acts 1905, p. 84), provision was made for bringing up parts of the record to this court in addition to those specified in the bill of exceptions including evidence contained in a brief of evidence forming part of such record.
The act of 1905, p. 84, provided that, in any case in which no brief of evidence is made and filed as a part of the record, if there is omitted from the main or cross bill of exceptions any material evidence, and the judge trying the case shall inadvertently certify such bill of exceptions as true, within 20 days from the service thereof he may make a supplemental certificate of the evidence so omitted, and such supplemental certificate, together with the evidence so certified, shall form a part of the original main or cross bill of exceptions and shall be so considered by the Supreme Court, and such supplemental certificate shall be filed with the clerk of the trial court, and be immediately transmitted to the Supreme Court as bills of exceptions are transmitted.
The section of the Code referred to in the first headnote made provision for cases where a brief of the evidence was filed as a part of the record. The act of 1905 provided for supplementing the evidence contained in the bill of exceptions, where material evidence had been omitted. Neither of these laws authorized the making up of an entirely new brief of evidence, causing it to be filed in the superior court, as a part of the record, after the bill of exceptions had been signed and the case had been brought to this court and the causing of such a brief to be transmitted to this court, as a part of the record, to be taken in lieu of the evidence contained and certified in the bill of exceptions.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2803; Dec. Dig. § 648. [*]]
This being a suit for the homicide of a fireman in the employment of a railroad company, under the evidence introduced it was error to grant a nonsuit.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1005; Dec. Dig. § 284. [*]]
Error from Superior Court, Lowndes County; R. G. Mitchell, Judge.
Action by Josephine Jackson against the Georgia, Southern & Florida Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.
Civ.Code 1895, § 5536, subd. 1, prior to the act of 1905 (Acts 1905, p. 84), in amendment thereof, provided for bringing up parts of the record of the Supreme Court in addition to those specified in the bill of exceptions, including the evidence contained in the brief of evidence forming part of the record. The act of 1905 (Acts 1905, p. 84), amended such section by adding the provision that if from the main bill or cross-bill of exceptions in any case in which no brief was filed as a part of the record there was omitted any material evidence, and the judge should inadvertently certify such bill as true, then within 20 days from the service thereof, he might make an additional certificate of the evidence so omitted, and that such supplemental certificate together with the evidence so certified should form a part of the original main or cross-bill of exceptions and should be so considered, and such supplemental certificate should be filed with the clerk of the trial court and be immediately transmitted to the Supreme Court as a bill of exceptions is transmitted. Held, that Civ.Code 1895, § 5536, subd. 1, made provision for a case where a brief of the evidence was filed as a part of the record, and that the act of 1905 (Acts 1905, p. 84), provided for supplementing the evidence contained in the bill of exceptions where material evidence had been omitted, but that neither authorized an entirely new brief to be filed in the superior court, as a part of the record, after the bill of exceptions had been signed and the case brought to the Supreme Court, and the causing of such a brief to be transmitted to the Supreme Court as a part of the record, to be taken in lieu of the evidence contained and certified in the bill of exceptions.
Mrs Josephine Jackson brought suit against the Georgia, Southern & Florida Railway Company to recover damages for the homicide of her son, Richie Jacob Jackson, on whom she alleged that she was dependent for a support at the time of his death. On the trial the evidence of the principal witness for the plaintiff, in regard to the manner in which her son met his death, was in substance as follows: Witness is an engineer in the employment of the defendant, and was so at the time of the death of plaintiff's son. The latter came to his death as the result of the collision of two engines of the defendant company in its yard in the city of Valdosta on the 6th day of April, 1905. It was early in the morning, just before daylight, and about half an hour after witness as engineer, and Jackson as fireman, upon an engine of the defendant company, had been called and had gone on duty. Witness was engineer upon an engine which pulled a freight train from Valdosta to Jacksonville and return, a distance of 111 miles. Jackson was a fireman in the employment of the same company, and as such fired the engine upon which the witness made his run, and for and under the witness. About 30 minutes before Jackson's injury and death, they mounted the engine preparatory to connecting with the train to make the trip to Jacksonville. The engine was in the eastern part of the trainyard of the company in Valdosta, not far distant from the passenger depot. The yard extends in a western direction about three-quarters of a mile from the depot, and within the yard limits and what was known as the "workshop" of the company. At this shop engines are kept, and to it are carried after trips upon the road, and from it are taken preparatory to making trips. At this workshop was kept the equipment of the engines. The hostler had brought the engine to the place in the yard above mentioned, and had left it there for the engineer and fireman, who had taken charge of it, and had gone back to the workshop. The engineer discovered that the cushion for him, which was part of the equipment of the engine and provided by the company as such for the use of the engineers in making these long trips, had not been placed in its customary and usual place. The hostler who brought the engine from the western part of the yard, at the workshop to the eastern part of the yard, failed to place the cushion upon the engine, as it was his duty to do. The engineer called Jackson's attention to this fact, and told him that he (the engineer) would have to go back to the shop and get the cushion. "At my suggestion he agreed to go with me." It is true that the cushion which the engineer was using at the time was one which he had made for himself, and was better than that furnished by the company to all of its engineers, and it was adopted and used in lieu of the company's regular cushion. When the engineer notified Jackson of this, the latter remarked that he had omitted to bring his pants, and without them he could not go uptown upon reaching Jacksonville. Previously to this, and until recently, he had been living not far from the workshop. The witness did not know where he lived at the time of his death. If he lived at that time at the boarding house of Mrs. Paxton, when going with the engineer upon the engine to the workshop he was going in a direction away from his boarding house. (Mrs. Paxton testified that, at the time of his death, Jackson was boarding at her house toward the eastern part of the railway yard, and that his clothes and other possessions were at her house; that he had been called to go on duty that morning about an hour before he was killed; and that when the collision happened he was going in a direction away from her house.) The engineer started back to the workshop after the statement to Jackson, and Jackson, knowing his purpose, accompanied the engine. The engineer had no headlight to go upon the back of his engine; none was furnished by the company; but he told Jackson to use a torchlight from the window upon his side of the cab of the engine, and to look out upon that side, "the torchlight to be the signal." Jackson proceeded to do this, and to turn the switches, on the trip with the engine. Before starting back, the witness blew three long blasts of the whistle, which was the usual, customary, and known signal to all engineers and employés in the yard that the engine which was on was backing. This signal could be easily heard anywhere within the yard limits from where the engineer was. After giving this signal, the engineer proceeded, with Jackson, to back the engine toward the workshop for the purpose stated. Witness observed the rule of the company, which required all engines and trains to move within the yard limits of the city at a speed of not exceeding six miles an hour. On approaching the point where the track of the Valdosta Southern Railway Company intersects and crosses the track of the defendant company, the engineer blew the usual and required signals with the whistle, indicating the approach of his engine to this crossing, and slackened the speed of the engine until it came to a stop 50 feet from the point of the intersection of the two tracks. The engineer was at his post, and Jackson was at his, looking out and holding the torchlight, according to the engineer's direction. They were about 200 or 250 yards from the workshop. The track curved sharply ahead of them to the right, and in the bend was a fence, and some little distance from the track was a...
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