Killian v. The Augusta

• Decision Date: 31 March 1887
• Citation: 78 Ga. 749
• Parties: Killian . vs. The Augusta and Knoxville Railroad Company.
• Court: Georgia Supreme Court

78 Ga. 749

Killian . vs. The Augusta and Knoxville Railroad Company.

Supreme Court of the State of Georgia

MARCH TERM, 1887.

Railroads. Damages. Negligence. Master and Servant. Words and Phrases. Practice in Superior Court. Witness.

Interrogatories. Before Judge Lumpkin. Richmond Superior Court. October Adjourned Term, 1886.

Reported in the decision.

J. S. & W. T. Davidson, for plaintiff in error.

Jos. Ganahl, for defendant.

Hall, Justice.

This was a suit brought by the widow of Killian, who was in the employment of the Port Royal and Augusta Railway Company, and who was directed to accompany a train and to deliver a load of rough lumber, slabs, etc. at the Sibley Mill, a point on the Augusta and Knoxville Railroad. The alleged carelessness on the part of the defendant consisted in the defective construction of a certain curve at a point on the streets of Augusta, and over which this train had to pass. It seems from the evidence that the deceased, the plaintiff's husband, was riding on the end car of the train, accompanied by three or four others, who were bound upon the same mission, and that at that curve this car was derailed and he was killed. This was substantially the case made by the plaintiff, as shown by the facts in proof. Upon the conclusion of the testimony for the plaintiff, a nonsuit was awarded.

There was a dispute as to the precise portion of the front car occupied by the plaintiff's husband at the time of the casualty which resulted in his death. There was also a dispute as to the relative safety of his position, whether it was less safe there than it would have been on other portions of the train. It was insisted that he was in the most dangerous position that could have been taken on that train. It was further contended that he was an employe of the Augusta and Knoxville Railroad Company, for the purpose of transacting the business in which he was then engaged, and that in order to maintain this action, he must have been free from fault.

1, 2. It is by no means clear to our minds that he was a co-employe with the persons in the employment of the Augusta and Knoxville Eailroad Company, and who were in charge of the train on that occasion; but we do not decide that question definitely. We refer on that subject simply to the decision of this question in the case of Cooper vs. Mullins, 30 Ga. 146.

But whether he was a co-employé or not with those in charge of the train, his widow was entitled to maintain this action against the defendant, unless he was guilty of negligence; and negligence was a fact for the jury to pass upon in that as well as in other cases. Although there was a conflict of testimony on that point, the jury were not permitted by the court to pass upon the question; and if upon no other ground, the judgment awarding the nonsuit must be set aside, and a new trial granted, for that reason. The plaintiff has not had her rights.

3. There is one other question in this case, which, on account of its practical importance, we deem it necessary to dispose of. Interrogatories were sued out for one Radford, who was a resident of Port Royal, South Carolina. The answers to these interrogatories were taken there; and upon the execution of the commission, the papers were turned over and mailed from Port Royal, the person acting as postmaster signing the ordinary...