Macon And Augusta R.R. Co. v. Mayes

Decision Date31 July 1873
Citation49 Ga. 355
PartiesMACON AND AUGUSTA RAILROAD COMPANY, plaintiff in err0r. v. MOSES MAYES, defendant in error.
CourtGeorgia Supreme Court

Corporations. Franchise. Railroads. Before Judge Bart-lett. Baldwin Superior Court. February Term, 1873.

Moses Mayes brought case against the Macon and Augusta Railroad Company for $20,000 00, damages alleged to have *been sustained by the plaintiff on account of the negligent conduct of the defendant in the running of its cars, by which he lost one of his legs. The defendant pleaded not guilty. The evidence made the following case:

George H. Hazlehurst was the president of the defendant, its chief engineer, and also a member of the firm of George G. Hull & Company, the contractors who were constructing the defendant's road. Whether the road had been entirely completed and formally turned over by the contractors to the defendant, the evidence was conflicting. William Printup was the superintendent of construction under George G. Hull & Company. The plaintiff was about twenty-four years of age. He was a hand employed in hying the track on the Macon and Augusta Railroad. J. W. DeBogan was the engineer of an engine employed by Hull & Company. On theday of the accident, the fireman on DeBogan\'s engine was sick, and the plaintiff was ordered by Printup to serve in that capacity. Mr. Hazlehurst was on the engine. As they went from Haddock\'s station towards Milledgeville. they heard a whistle which they thought was at the crossing. After "flagging" the first curve, DeBogan asked plaintiff if he heard anything down the road. He answered that he did not, and they went on. When they reached the crossing, DeBogan blew his whistle. Plaintiff thought he intended to let him off to "flag" the second curve; thought he heard the engine, and asked DeBogan if he was going to "flag." DeBogan replied that he did not think it worth while. A hand on the engine suggested that the whistle which had been heard came from a train on the Eatonton road. Just as he asked DeBogan about "flagging, " he turned and saw the engine coming. The collision took place and plaintiff was injured to such an extent as necessitated the amputation of his leg. He received $1 25 per day for his labor. The defendant pays $1 85 per day for firemen.

The accident happened on December 1st, 1870, about one and a quarter miles from Milledgeville, in the direction of Macon. The night previous to the accident a dispatch was *sent to Frank Burnett, conductor on the Macon and Augusta Railroad, saying that a train would come up from Augusta going to Macon. Mr. Hazlehurst stated to DeBogan that he had received a dispatch from S. K. Johnson, superintendent of the Georgia Railroad, to the effect that the special train would leave Camak at 10:45 A. M. The collision took place at about 1:13 P. M. The distance from Camak to the place of collision is between forty-eight and forty-nine miles. DeBogan told Mr. Hazlehurst that they had better not proceed from Haddock. Hazlehurst directed him to go on and to "flag" the curves. He did not "flag" the last curve. He obeyed the instructions of Mr. Hazlehurst because he respected his authority as president of the road. He was put in charge of the construction engine at the request of Mr. Hazlehurst, and consequently felt grateful to him for the appointment; also obeyed him for this reason. He was discharged by Printup. He saw a dispatch from Johnson to Nesbit, agent of defendant at Milledgeville, on the evening before the collision. It was as follows: "A special train will leave Camak for Macon, at 11 o'clock. Suffer no train to pass Milledgeville." "Flagging" is a precaution used for the purpose of preventng collision between trains. A person is sent ahead of the engine, and when he discovers an approaching train he waves his flag, which causes the engine from which he has come to back; thus collisions are avoided.

The evidence was conflicting as to whether, if the second curve approached by the engine upon which plaintiff was, had been "flagged, " a collision would have been prevented.

The train coming from Camak was an excursion train that ran at the instance of Hull & Company, the contractors. John P. King, president of the Georgia Railroad, S. K. Johnson, superintendent, Mr. Tyler, vice-president of defendant, and some other gentlemen, were on board. They were passing over the road by invitation—whether of Hull & Company or of Mr. Tyler, the testimony was conflicting.

The question upon which the case turned in the Supreme *Court, renders unnecessary any more comprehensive statement of the testimony.

The jury returned a verdict for the plaintiff for $3,500 00. The defendant moved for a new trial upon the following, among other grounds: Because the Court erred in charging the jury, "that if the defendant owned the road, and permitted the Georgia Railroad Company or Hull & Company to run cars thereon, then defendants are liable for all injuries resulting from the negligence or misconduct of the employees of said company so using their said road."

The motion was overruled and the defendant excepted.

George F. Pierce; Crawford & Williamson, for plaintiff in error.

W. A. Lofton; Dudley M. DuBose, for defendant.

McCAY, Judge.

It is quite clear that the plaintiff, without fault of his own, has been badly hurt by a collision of trains on the defendant's railroad, caused by somebody's fault. It is scarcely less clear that the person most to blame for the collision was Mr. Hazlehurst...

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