Krogg v. The Atlanta

• Decision Date: 31 October 1886
• Citation: 77 Ga. 202
• Parties: Krogg. vs. The Atlanta and West Point Rall road et al., and vice versa.
• Court: Georgia Supreme Court

77 Ga. 202

Krogg. vs. The Atlanta and West Point Rall road et al., and vice versa.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

[COPYRIGHT MATERIAL OMITTED.]

Evidence. Master and Servant. Railroads. Principal and Agent. Comity of States. Statute of Limitations. Charge of Court. Construction. Before Judge Van Epps. City Court of Atlanta. June Term, 1886.

Fred. Krogg brought an action for damages against the Atlanta and West Point Railroad Company and the Western Railway of Alabama, alleging, in brief, as follows: In 1882, he was employed in Atlanta by the defendants jointly as a locomotive engineer to run between Atlanta and Montgomery on the line formed by the roads of the two defendants. While thus running, on March 2, 1883, his engine was thrown from the track at or near Cusseta, Alabama, without fault on his part, and he was permanently injured, etc. The negligence of the defendants consisted in having the elevation of the curve at the point too high for safety, and in having a broken rail and rotten cross-ties. The track was otherwise in an unsafe condition, and the defendants and their agents were negligent.

On the trial, the evidence was voluminous and need not be set out in detail. So far as necessary to illustrate the assignments of error, that on behalf of the plaintiff showed, in brief, as follows: The two roads were controlled by the same general manager, paymaster and general officers, and ran through trains from Atlanta to Montgomery, employing jointly the same conductors and engineers, using the same engines and cars and having a common pay-roll. In 1882, the plaintiff was employed by the defendants as an engineer, and on March 2, 1883, at night, near Cusseta, Alabama, his engine left the track, breaking the train and injuring him and others. This occurred on a curve, the elevation of the outer rail of Which was too high, being about five inches, when it should have been one and five-eighths inches for a train running thirty miles an hour, which was a fast schedule for that line. After the catastrophe, the elevation on this and other curves was reduced. A number of cross-ties here were rotten. The section-master stated that he considered the track at that point in safe running order, but it was not in first-class condition, that it had been about a year since he put new ties in that portion of the track; that it was the custom to do this about once a year; that he had applied to the road-master before the accident for more cross-ties, but did not receive them; and that, shortly after the accident, the general manager and road-master walked over that section of the track, and after that he received new ties. Cecil Gabbett was the general manager and the highest officer in Alabama and had charge of the running of the roads, the control of employes and the care of the track. He was asked, "Is it your duty to know all about everything going on?" and answered, " Yes, sir." Also, " And to keep everything straight?" Answer, " Yes, sir." The president had nothing to do with managing the road. On the night of the injury, Gabbett was on a train going from Atlanta to Montgomery, and at West Point was asleep in a car. The conductor, Sandwich, testified that about ten o\'clock he went into the car where Gabbett was, woke him and told him of the wreck of the plaintiffs train; and Gabbett remarked that he had told the road-master that those curves were too high. He then took a car and went to the wrecked train, and on arriving there made an examination of it and of the track, etc. The plaintiff testified that after this, Gabbett came into a car where he and a mail agent, Hester, were lying, injured, and asked plaintiff what, in hisopinion, caused the wreck. Plaintiff replied that he thought it was a broken rail, but was not positive. Gabbett replied, " You are mistaken." Plaintiff then asked what, in Gabbett\'s opinion, caused the wreck, as he had made an examination, and he replied, " It had too much elevation on the curve." Plaintiff asked if he was positive about it, and he replied, " Yes, I know it; hereafter I will remedy this, and have no more accidents from that source." Hester swore that he was the mail agent; that he also was lying in the car near the plaintiff, and heard Gabbett say he thought the cause of the accident was, the elevation was too high.

The testimony for the defendants conflicted with that of the plaintiff in many particulars. Gabbett denied the conversations attributed to him; and evidence was introduced to show that if the outer rail of the curve had been too high, the engine would not have been (as it was in fact) thrown off on that side; and much evidence was introduced as to the condition of the road-bed and track. There was also conflicting evidence as to the extent of the injury, and whether the plaintiff's condition was the result of such injury or of disease.

The jury found for the plaintiff $15,000. The defendants moved for a new trial on many grounds. The following, which are stated in substance, will serve to explain the points decided:

(l)-(3.) Because the verdict was contrary to law and evidence and without evidence to support it.

(4.) Because the verdict was excessive.

(5.) Because the court refused to grant a nonsuit as to the Atlanta and West Point Railroad Company.

(6.) Because the court struck a plea of the statute of limitations, filed by the defendants, which set out that the injury happened in Alabama; that the statute of limitations of that State required suits for personal injuries to be brought within one year of the time of their occurrence. The court held that the law of Georgia, and not that of Alabama, was applicable as to the limitation of the action, and struck the plea and rejected testimony offered under it.

(7.) Because the court erred in charging the jury in the following language: " If you believe from the evidence that the plaintiff, on the 2nd day of March, 1883, was a joint servant of these two defendants, under contract with them to drive an engine on the line of their road from Montgomery to Atlanta, and that while in the line of his duty, and without fault on his part, while driving his engine along the track, near Cusseta, Alabama, said engine was thrown from the track because of defendants' negligence in failing to provide a suitable track or to keep said track in reasonably safe and good condition for the passage of the train of cars thereon, but that plaintiff was injured thereby, and has sustained damages, then the plaintiff is entitled to recover such amount in damages as will compensate him for his injuries thus inflicted. The jury is instructed that the law is, that one who is the joint servant of two employers, and is injured in such service, has his election to sue either or both of his employers." The error in this charge consists in the failure of the court to point out to the jury that the road guilty of the negligence causing the injury would alone be liable; and in charging that both defendants would be liable, the evidence in the case failing to show that the Atlanta and West Point Railroad, its servants, agents or employes were guilty of any fault or negligence causing the accident.

(8.) Because the verdict of the jury is contrary to the following charge of the court: " If you believe from the evidence that such alleged defects existed, and that Ar-rington, the section-master, or any other subordinate officer of the company who did not represent its personality and stand as its substitute, knew of such defects and failed to repair them or to communicate them to the company, and the company was not negligent, the plaintiff could not recover. For all such casual or incidental or accidentalacts of negligence or omission of duty by a fellow-servant, the master is exempt; it is a risk of the employment."

(9.) Because the court erred in making the following charge: " If you believe from the evidence that Mr. Gabbett was the superintendent and general manager of defendants, and that as such he represented a function of the company in the executive control and supervision of all its departments, and through the heads of departments exercised a superintendence over all of the defendants' operatives and internal business and affairs, the machinery and appliances of the company, then Mr. Gabbett, for all purposes of notice and knowledge of defects in such machinery and appliances, would represent the personality of the company, and would stand in law as its substitute." The error in this charge consists in telling the jury that knowledge of defects in machinery, etc. of defendants by Gabbett is the knowledge ofthe defendants, and that notice in him is notice in the defendants for which they would be liable.

(10.) Because the court erred in making the following charge: " It would also be proper for you to take into consideration the condition of the plaintiff as to health and soundness when injured, and if you find from the evidence that disease or other injuries had made inroads upon his health at that time, and are still operating and in part contributed to the present impairment of his abilities which he claims to suffer, you would be authorized to make a still further reduction on that account, if you saw proper to do so, and you might consider any other fact or circumstance, if shown in the evidence or founded upon your ob-servation and experience, which would properly tend to affect your estimate of the probable future of the plaintiff had he not been injured."

(11.) Because the court erred in refusing to charge the following: Mr. Cecil Gabbett, the general manager of the defendant corporation, is not, in law, the defendants themselves, nor would the defendants be liable in this ac-tion for any act or opinion of his done or expressed in the discharge of his duty as general manager or superintendent."

(12.) Because the court refused to charge as follows: " Notwithstanding the fact, if it be a fact, that Arrington may...