Johnston v. Richmond & D.R. Co.

• Decision Date: 25 March 1895
• Citation: 22 S.E. 694,95 Ga. 685
• Parties: JOHNSTON v. RICHMOND & D. R. CO.
• Court: Georgia Supreme Court

22 S.E. 694

95 Ga. 685

JOHNSTON v. RICHMOND & D. R. CO.

Supreme Court of Georgia

March 25, 1895

Syllabus by the Court.

1. In an action by a locomotive engineer against a railroad company, of which he was an employé, for personal injuries received by him while running a locomotive, it was error to charge that, in order to entitle the plaintiff to a recovery it was necessary for him to show affirmatively both negligence on the company's part and the absence of negligence on his part. If he showed that he was not negligent, the presumption of negligence was raised, by law against the company. If he showed that the company was negligent, it then became incumbent on the company, as matter of defense, to show that the plaintiff was negligent.

2. Books of science and art are not admissible in evidence to prove the opinions of experts announced therein.

3. The case being, to a great extent, controlled by the legal propositions announced in the first of the preceding notes if errors, other than as therein indicated, were committed at the former trial, the court will doubtless correct them upon the next hearing.

Error from superior court, Clarke county; N. L. Hutchins, Judge.

Action by J. C. Johnston against Richmond & Danville Railroad Company. Judgment for defendant, and plaintiff brings error. Brought forward from the last term. Code, §§ 4271a-4271c. Reversed.

Lumpkin & Burnett, for plaintiff in error.

Geo. Dudley Thomas, for defendant in error.

ATKINSON J.

1. In this case the suit was brought by the plaintiff (he being an employé against the company for injuries alleged to have resulted from the negligence of coemployés in and about the running and operating of the same train by which he was himself injured. Such being the case, the trial judge charged the jury that, in order to entitle the plaintiff to recover two things are necessary: First, he must show negligence on the part of the company, or its agents or employés; second, the absence of negligence on his part contributing to the occasion or cause of the injury complained of. We think, in view of the previous rulings of this court, that this instruction was erroneous. The rule, as stated by this court in Railroad Co. v. Kenney, 58 Ga. 489 (Justice Bleckley delivering the opinion), is as follows: "Concerning one class of cases, viz. that class in which, as in the instance before us, the injured party shared directly in the act which resulted in his own wounding, the rule as to the burden of proof is as follows: After proving the fact and degree of the injury, if the plaintiff will show himself not to blame, the law then presumes, until the contrary appears, that the company was to blame; or if he will show, on the other hand, that the company was to blame, the law then presumes, until the contrary appears, that he was not to blame. So that in order to make a prima facie case, and change the onus, he need not go further than to show by evidence one or the other of these two propositions,--either that he was not to blame, or that the company was. The company, taking at this stage the burden of reply, can defend successfully by disproving either proposition." We think the charge of the court contravened directly this rule, and imposed upon the plaintiff a burden greater than the law contemplates he shall bear. To the same effect as...