Lee v. Central R. Co.

• Decision Date: 26 November 1890
• Parties: LEE v. CENTRAL R. CO.
• Court: Georgia Supreme Court

12 S.E. 307

86 Ga. 231

LEE v. CENTRAL R. CO.

Supreme Court of Georgia

November 26, 1890

Syllabus by the Court.

The presence of one clinker of unusual size on the margin of a railway track where switching is to be done, and on which a brakeman accidentally steps in descending from a moving engine, in the due course of his duties, will not render the company liable to answer for a personal injury which the brakeman thus sustains. For outdoor premises to be reasonably safe, it is not required that the surface shall be kept clear of every object which by chance might cause accidental injury.

Error from city court of Savannah; HARDEN, Judge.

Garrard & Meldrim, for plaintiff in error.

Lawton & Cunningham, by Edward S. Elliott, for defendant in error.

BLECKLEY C.J.

This being the first grant of a new trial, we should leave it to the general rule, were it not that, upon looking into the evidence, we are of opinion that a new trial would be wholly superfluous, for the plaintiff was his own witness, the defendant introduced no evidence, and on the case made by the plaintiff himself there can be no recovery. His injury was purely accidental. He was probably faultless himself, and he certainly shows no fault on the part of the company, unless the company is to be treated as an insurer against accidents to its employes, which, of course, is not its legal character or relation. He was a brakeman, and, in the course of his duty, stepped from the engine to the ground, the engine being in motion. In so doing, he struck his right foot against a large clinker of coal dross, five or six inches through one way, and three or four inches the other. It was nearly covered up with other dross from the engine, which he stepped into. That dross consisted of rakings from the furnace. These rakings do not generally consist of pure ashes, but sometimes have clinkers, generally so, unless they have been walked over long enough to be broken up. Frequently clinkers are so soft that walking over them will break them, and he had broken many. Generally a good many piles of this dross are along the track. He could not say how far this particular pile extended. He had seen piles 200 yards long. Dross that comes from the engines is taken from the side of the track and used for ballast between the rails. At that time, a construction train was engaged in such removal. This particular clinker was of unusual size, the average being...