Little v. Southern Ry. Co.

• Decision Date: 09 June 1904
• Citation: 47 S.E. 953,120 Ga. 347
• Parties: LITTLE v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

47 S.E. 953

120 Ga. 347

LITTLE v. SOUTHERN RY. CO.

Supreme Court of Georgia

June 9, 1904

Syllabus by the Court.

1. An employé cannot recover damages of a railroad company for an injury proximately caused by his violation of a penal statute or municipal ordinance. The principle is not modified where the employer may have directed the employé to violate the law, or may have sanctioned the continuance of a custom amounting to a contravention of the law.

2. The rules of a railroad company for the government of its employés are not obligatory, as such, upon those who do not know them, and to whom they have not been promulgated.

3. An employé cannot recover of a railroad company if he is negligent, and his negligence appreciably contributes to his injury.

4. The contentions of the plaintiff as made by the pleadings were fairly submitted to the jury.

5. The application of the charge of the court on the subject of contributory negligence to the evidence necessarily controlled the verdict, and the verdict for any minor error of law will not be set aside.

Error from City Court of Macon; Robt. Hodges, Judge.

Action by J. H. Little against the Southern Railway Company. Judgment for defendant, and plaintiff brings error, and defendant assigns cross-error. Judgment on main bill of exceptions affirmed. Cross-bill dismissed.

John R Cooper, M. W. Harris, and J. H. Hall, for plaintiff in error.

Dessau Harris & Harris, for defendant in error.

EVANS J.

1. Within an hour after the plaintiff began to discharge his duties in shifting the cars, he violated two statutes of the state and a municipal ordinance of the city of Macon. When he ran on the main line with his cars, he failed to observe Civ. Code, § 2234, which required him to stop within 50 feet of the place of crossing the Central Railroad, which was an independent railroad. He did not stop before crossing the Central Railroad, but immediately after clearing the same he brought his cars to a full stop. It was afterwards that he ran his train down in the direction where the collision occurred. Plaintiff in error contends that in no sense was the failure to stop within 50 feet of the Central Railroad crossing a contributing cause of the injury, for the reason that he had crossed the railroad and come to a full stop, and, even if he had been negligent in violating the statute requiring him to stop within 50 feet of the crossing, that, having stopped his train just beyond the crossing, his failure to observe the statute could not have contributed to the injury. On the other hand, the railway company insists that this was a down grade, and, if he had stopped within 50 feet of the crossing, he would have been able to push the cars back into the siding, and that, because of his failure to observe the statute, and in going beyond the Central of Georgia Railroad crossing to a point so far down grade, he was unable to push the cars back, and was guilty of negligence. The court submitted this issue to the jury; instructing them that, unless they believed the failure on the part of the plaintiff to comply with this statute was a contributing cause of the injury, he would not be chargeable with negligence in failing to observe it.

Section 2234 is primarily designed to prevent collisions between the trains on the intersecting roads. Although the plaintiff did not comply with the statute in stopping within 50 feet of the intersecting road, he did bring his train to a full stop after crossing the track of the Central of Georgia Railroad Company. Relatively to what occurred after crossing that track, the failure to stop before he crossed it was not the proximate cause of the collision. Diligence might have required him to ask for assistance in backing his train, instead of moving further down grade, but his failure to stop his train within 50 feet of the railroad crossing is too remote to be regarded as a contributing cause of the collision with the other engine. But as the jury were instructed that this would not be an act of negligence unless it was found to be a contributing cause of the injury, and as the evidence demanded a finding that the injury proximately resulted from the violation of the statute requiring him to check the speed of his train while approaching a street crossing, and in running faster than was permitted by the municipal ordinance, the submission of this irrelevant issue should not have the effect of vitiating the only verdict which could properly have been rendered under the facts of the case.

After the plaintiff had stopped his train beyond the railroad crossing, and was unsuccessful in his attempts to back the cars, he started forward at a speed estimated by the witnesses as from 8 to 20 miles an hour, crossing two streets in the city of Macon without checking the speed of his train. The court charged Civ. Code, § § 2222, 2224, requiring an engineer to check the speed of his locomotive within 400 yards of such crossings, so as to be able to stop in time should any person or thing be crossing the track; and in this connection the court instructed the jury that, if they believed that the failure of the plaintiff to observe this statutory requirement was a proximate cause of his injury, he would not be entitled to recover. There are several cases construing these sections of the Code. Their application has been confined to injuries to person or property occasioned by a railroad company at a grade crossing, and in these cases it has been held to be negligence per se not to comply with the statute. There has been no adjudication as to what effect a failure to observe this statute would have upon the engineer in the event he was injured at a point either on or near the crossing. The statute makes it the duty of the engineer, and not of the railroad company, to blow the whistle and check the speed of the train. If he fails to do this as required by the statute, he is subject to indictment for a misdemeanor and if, in the commission of this criminal act, an injury results which could have been avoided but for the commission of that act, his right to recover...