Mitchell v. Western & Atl.

• Citation: 30 Ga. 22
• Court: Georgia Supreme Court
• Decision Date: 31 March 1860
• Parties: DANIEL R. MITCHELL v. WESTERN & ATLANTIC RAILROAD.

30 Ga. 22

DANIEL R. MITCHELL v. WESTERN & ATLANTIC RAILROAD.

Supreme Court of the State of Georgia

MARCH TERM, 1860.

Case, in Cass Superior Court, and motion for new trial. Heard and decided by Judge Crook, October Term, 1859.

This was an action on the case brought by Daniel R. Mitchell against the Western & Atlantic Railroad to recover damages for injuries received by plaintiff's slave on board the cars of defendant.

From the evidence it appeared that plaintiff, with his wife and children, and about ten of his negroes, took passage on the Western & Atlantic Railroad at Atlanta for Kingston. The negroes were paid for as passengers, and went on the second-class passenger-cars; that somewhere between Atlanta and Kingston, the train stopped a very short time at awood and water station, and, upon starting, one of plaintiff\'s negroes (a boy about ten or twelve years old) was run over by the train and badly hurt. The train was immediately stopped, and the boy taken in and carried on to a station above and left. It did not appear from the evidence in what way he came to be run over; whether he had got out and was about getting back into the car, when it started and ran over him, or whether he was standing out on the platform or steps, and was thrown off upon the cars starting off. The testimony was somewhat conflicting, too, as to the signal given by blowing the whistle when the train moved off; some of the witnesses testifying that the train moved off before the signal was given; others, that it moved off simultaneously with the blowing of the whistle, and the conductor of the train, and probably another, testifying that it moved off after, but immediately after, the signal was given. The jury, under the charge of the court, found for the defendant; whereupon, counsel for the plaintiff moved for a new trial, upon the following grounds, to wit:

1st. Because the verdict of the jury is contrary to the weight of evidence.

2d. Because the court charged the jury, that to entitle the plaintiff to recover, some negligence on the part of the defendant must be shown by proof, and that the mere fact of the injury having been done to the negro by his having been run over on the track, is not, of itself, prima facie evidence of negligence of defendant; and to authorize a recovery, there must be some other proof of negligence.

3d. Because the court charged the jury, that the liability of defendant in the case must be determined rather by the laws applicable to the carriers of passengers, than by those applicable to carriers of goods, and that defendant must have been guilty of negligence, or he is not liable.

4th. Because the Court charged the jury, that if the place where the cars stopped, and the negro was injured, (Barrow's Station,) was a wood and water station, and not a place for passengers to get on or off the cars, then there was no necessity for the cars to stop longer than was necessary to get a sufficiency of wood and water; and especially so, as far as this negro was concerned, as he had started to go to Kingston, and had no business to get off at the station; and that to make the defendant liable, it must be shown that he wasguilty of more negligence than it would have taken to make him liable, had the accident happened at a passenger depot, and not at a wood station.

5th. Because the Court refused to charge the jury as requested by plaintiff, that to neglect to exercise authority to prevent a thing, is, in legal contemplation, to permit it; and if the negro boy was placed under the care and control of the officers of the railroad, it was their duty, and they had the power and authority to place him in such a condition as to prevent an accident, to his injury accruing; and if they failed to do so, the railroad is liable, and the plaintiff entitled to recover. They may not only use coercion even to chains, if necessary for the protection of property from peril, but it is their duty to do so. Humanity to the slave, as well as a proper regard for the interest of the owner, alike, demand that the rules of law regulating such transactions should not be relaxed. The imprudence of slaves demand it. They are incapable of self-preservation, either in danger or disease, and especially one of the age and size of the boy William, sued for in this action, and this duty and office devolves upon those who, for the time being, have the custody and control of the slave, and if they fail fully to perform it, then it becomes the high and solemn duty of Courts to enforce it by the only means in their power—a direct appeal to the pocket of the delinquent party.

6th. Because the Court refused to charge the jury, as requested by plaintiff's counsel, that if the negro boy William was placed in the possession of, and under the control of the proper officers of the railroad, and James F. Cooper, superintendent of said railroad, was in the car with said negro boy and permitted him to go out of the car, by which he was injured, the railroad is liable for all the injury done to the boy and the loss the plaintiff sustained by it.

7th. Because the court refused to charge the jury, as requested by plaintiff's counsel, that if the cars stopped at a wood and water...