Killian v. Augusta & K. R. Co

• Decision Date: 22 November 1887
• Citation: 4 S.E. 165,79 Ga. 234
• Court: Georgia Supreme Court
• Parties: Killian v. Augusta & K. R. Co.

4 S.E. 165

79 Ga. 234

Killian

v.Augusta & K. R. Co.

Supreme Court of Georgia.

November 22, 1887.

1. Master and Servant—When Relation Exists.

plaintiff's husband, an employe of the Port Royal Railroad Company, was killed by an accident while the train of the former was on the track of the Augusta road. Held, in an action for damages, that deceased was not an employe of the Augusta road.

2. Railroad Companies—Negligence—Use of Other Tracks.

In an action for damages sustained by an employe of the Port Royal Railroad, while its train was by license running on the track, alleged to have been defective, of the Augusta railroad, held, that the latter company was liable if it failed to furnish a track over which the train might safely run.

8. Same.

In such case, if the injury was caused by a defect in the trucks of the cars of the company of which plaintiff"s husband was an employe, she cannot recover from the other company. But if caused both by a defect in the trucks of the cars of the Port Royal and in the track of the Augusta Company, then plaintiff would be entitled to recover in the proportion the defective track contributed to the injury.

4. Same.

If an accident resulting in the death of plaintiff's husband was caused solely by the defect in the track of a railroad over which the train of another company, on which deceased was employed, passed, and he was not negligent, and could not have avoided the injury by the exercise of reasonable care, the company whose de-fective track caused the accident will be liable for damages, but they should be reduced as in case of contributory negligence, if deceased was negligent, but could not have avoided the result of defendant's negligence by reasonable care.

6. Negligence—Pbovince of Jury—Instkuctions.

An instruction as to what is ordinary care, and what is negligence, held error, as the determination of that question is for the jury.

6. Damages—Death by Wrongful Act—Station in Life.

In an action to recover damages for the death of plaintiff's husband, caused by the negligence of defendant, the inquiry as to personal expenses of deceased, to be deducted from amount of recovery, is not limited to his food and clothing, but his habits, station in life, and means and manner of living, may be proved for the con-sideration of the jury.

7. Deposition—Intebeoqatoeies—Cross-Intekeogatokies.

Interrogatories had been answered by a witness for plaintiff, and were crossed by defendant, but the latter, to lay a foundation to impeach that witness, sued out and was allowed a second set of cross-interrogatories. Held no error, and defendant did not thereby make him its witness.

8. Same—Qualification of Commissionees.

The finding of the lower court, supported by evidence, that a commissioner taking interrogatories was not attorney for one of the parties, will not be disturbed on writ of error.

Error from superior court, Richmond county; Boney, Judge.

Jos. Sanahl and J. B. Cumming, for plaintiff in error. J. S. & W. T. Davidson, contra.

Simmons, J. Catherine E. Killian brought suit against the Augusta & Knoxville Railroad Company for damages. She alleged that her husband, John II. Killian, was an employe of the defendant, and while engaged in the performance of his duties as such, without any fault or negligence on his part, and by the fault and negligence of the defendant, was thrown from a train of cars, and run over and killed. She alleged that the fault and negligence of the railroad company consisted in the violation of the ordinance of the city of Augusta which prohibits the running of railroad cars through its streets at a greater rate of speed than five miles per hour; in the cars being so run through the streets of said city upon a defective curve, which was not the standard gauge by from half an inch to an inch and a half; in said curve not being properly elevated and lined up from two to live inches; in allowing dirt, mud, etc., to accumulate in said curve, and not keeping the curve clear and cleaned out; and in not keeping a guard-rail on the lower side of said curve, to prevent the wheel from mounting and running off on the upper side of said curve; and that by reason of this illegal running, and these defects in the track of said company, the car upon which the plaintiff's husband was riding was thrown from the track, and he was killed.

The defendant filed a plea of the general issue, and other special pleas, which appear in the record. Upon the trial of the case the jury returned a verdict for the plaintiff. The defendant made a motion for a new trial upon the grounds set out in said motion, which was overruled by the court, and the defendant excepted and assigns the same as error. The plaintiff also filed a cross-bill of exceptions, alleging errors in the rulings of the court during the progress of the trial, and in certain charges of the court, which are set out in the cross-bill of exceptions, and which will be referred to further on in this opinion.

It appears from the record that the Augusta & Knoxville Railroad Company had only completed its track a short distance, to-wit, from their depot in the city of Augusta to the Sibley mills; that they had not commenced doing a general business; that they had no rolling stock of their own, but sometimes would hire engines and cars to transport freight from their depot in the city to said Sibley mills. It appears further, from the record, that Mr. Fisher, a wood-dealer in the city of Augusta, had engaged a train of the Port Royal & Augusta Railroad, (running from Port Royal, South Carolina, to Augusta,)and had it loaded with wood or slabs in the state of South Carolina, and transported to the city of Augusta over said Port Royal & Augusta Railroad. This load of wood or slabs had been sold or engaged by him to the Sibley mills. Wishing to avoid the expense of unloading from one train and loading upon another, after the train arrived at the depot of the Port Royal & Augusta Railroad in the city of Augusta, Fisher obtained the permission of Mr. Fleming, the superintendent of the Port Royal & Augusta Railroad Company, for the train to proceed from the depot of the latter, on the track of the Georgia Railroad Company, and thence over the Augusta & Summerville Railroad, which connected with the Augusta & Knoxville Railroad, and to proceed along the track of the latter road to the Sibley mills. The train consisted of eight flat cars, loaded with wood, pushed forward by a locomotive from behind, and manned by employes of the Port Royal & Augusta Railroad. John H. Killian, the plaintiff's husband, was by direction of Mr. Fleming, the superintendent, to accompany this train to the Sibley mills, for the purpose of seeing that it was unloaded promptly and returned to the Port Royal & Augusta Railroad. When the train arrived at the depot of the Augusta & Knoxville Railroad, an arrangement was made with Mr. Twiggs, the superintendent of the...