Louisville & N.R. Co. v. Culpepper

• Decision Date: 18 August 1914
• Docket Number: 526.
• Citation: 82 S.E. 659,142 Ga. 275
• Parties: LOUISVILLE & N. R. CO. ET AL. v. CULPEPPER.
• Court: Georgia Supreme Court

82 S.E. 659

142 Ga. 275

LOUISVILLE & N. R. CO. ET AL. v. CULPEPPER.

No. 526.

Supreme Court of Georgia

August 18, 1914

Syllabus by the Court.

There was no abuse of discretion in overruling the motion for a continuance.

Where the plaintiff alleged in his petition that he was a flagman on a freight train of a railroad company, and that he was injured while engaged in the discharge of his duties as such and the evidence of the witnesses, including the plaintiff showed without conflict that he was a flagman, but there was conflict as to whether his duties as such required him to assist in uncoupling a train under direction of the conductor, and whether such direction was given, or whether he voluntarily undertook to perform this service in violation of his duties as a flagman, the fact that the presiding judge in his charge inadvertently stated to the jury that the plaintiff contended that he was employed in the capacity "of what is known as a brakeman" (instead of using the word "flagman"), and that he was engaged in work as such, will not require the grant of a new trial; it appearing from the pleadings, evidence, and charge as a whole that the jury could not have been misled by this erroneous use of a word so as to cause injury to the defendant.

The statement in the charge of the court that the plaintiff "contends that under the direction and order of the conductor, who he contends was a superior officer to him in charge of the train, and whose order he would be required to obey under the rules of the railroad companies, that the conductor ordered him to go between and uncouple certain cars," was not so unauthorized by the pleadings and evidence as to cause a new trial.

A petition seeking to recover damages for a personal injury caused by a railroad train alleged that the injured person was earning as a flagman $1,000 per annum, had an expectancy of life of 53.6 years, was in line of promotion, and was strong, vigorous, and capable of rendering valuable service but that as a direct result of the defendants' carelessness he was rendered a helpless cripple for the remainder of his life, having his right foot crushed from the toes to the instep, rendering amputation necessary. The injured person testified that his foot was so crushed as to render amputation at the instep necessary and to cause suffering; that he had undergone seven operations; that in addition skin was taken from another part of his body and grafted on the wound; that the last operation had been performed about two years after the injury; and that at the time of testifying (nearly two months thereafter) there was still a scab upon the wound. He further testified that at the time of the injury he was drawing different amounts as a salary; that sometimes he drew $74 per month, and at one time $88.96. He was before the jury in person, and used language which called the attention of the jury to his person. Held, that under such circumstances a charge in the following language will not require a new trial: "If you find that he has been damaged as set out in his petition then look to the evidence, facts, and circumstances of the case, and ascertain what amount he is damaged by such hurt and injury; and, if such hurt and injury decreases his ability to work and earn money, then you will look to the evidence, facts, and circumstances of the case applying the rules of law given you in reference thereto, and ascertain therefrom whether or not the plaintiff is entitled to recover any amount for such decrease in ability to work and earn money; and, if so, what amount he is entitled to recover."

The evidence authorized the verdict, and there was no error in overruling the motion for a new trial.

Error from Superior Court, Warren County; B. F. Walker, Judge.

Action by M. A. Culpepper, by his next friend, against the Louisville & Nashville Railroad Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Jos. B. & Bryan Cumming, of Augusta, and E. P. Davis, of Warrenton, for plaintiffs in error.

E. R. Hill, P. C. O'Gorman, and Pierce Bros., all of Augusta, and M. L. Felts and L. D. McGregor, both of Warrenton, for defendant in error.

LUMPKIN J.

M. A. Culpepper, by his next friend, brought suit against the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company, as lessees of the Georgia Railroad & Banking Company, to recover on account of a personal injury alleged to have been received while discharging his duties as a flagman, as a result of negligence in moving the train without a signal. It was alleged that the train on which the plaintiff was working was engaged in transporting interstate freight, and the federal employers' liability act of 1908 was invoked (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).

1. The ground of the motion for a new trial which assigned error on the overruling of a motion for continuance showed no abuse of discretion by the court in that ruling.

2. In the charge the presiding judge stated that the plaintiff contended that he was employed as a brakeman, and was injured...