Ocean S.S. Co. of Savannah v. McDuffie
| Decision Date | 05 October 1909 |
| Docket Number | 1,743. |
| Citation | 65 S.E. 703,6 Ga.App. 671 |
| Parties | OCEAN S. S. CO. OF SAVANNAH v. McDUFFIE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the case, a direct bill of exceptions lies therefrom.
(a) A judgment refusing to sustain a motion for a nonsuit will support a writ of error, unless the case eventuates in a mistrial.
(b) Where, at the close of the plaintiff's evidence, the defendant makes a motion for a nonsuit which is refused, and thereafter the defendant introduces no evidence, and verdict and judgment are rendered in favor of the plaintiff, it is unnecessary in a direct bill of exceptions, sued out within 30 days from the judgment refusing the nonsuit, to except to or assign error on the verdict and judgment rendered in favor of the plaintiff.
Under the evidence in this case, the questions as to whether the master was negligent, and whether the servant was guilty of contributory negligence or had assumed the risk, were issuable; and the judge did not err in refusing a nonsuit.
Error from City Court of Savannah; Davis Freeman, Judge.
Action by James McDuffie against the Ocean Steamship Company of Savannah. Judgment for plaintiff, and defendant brings error. Affirmed.
McDuffie sued the Ocean Steamship Company for damages growing out of personal injuries which he received while in its employment. A piece of bridge iron was thrown on his legs, and broke both of them just below the knee, so that one of them had to be amputated. The case has been tried twice. At the first trial the judge granted a nonsuit on the ground that the negligence of which McDuffie complained was the negligence of a fellow servant. This judgment was reversed by this court. McDuffie v. Ocean Steamship Co., 5 Ga.App. 125, 62 S.E. 1008. When the case was here before, it was urged by the steamship company that, even if the judge was wrong in granting the nonsuit on the ground that the negligence was that of a fellow servant, the judgment should not be reversed, since it appeared from the evidence that McDuffie had assumed the risk, and that this court would not reverse a judgment reaching the right result in the wrong way; that, if a nonsuit was proper for any reason, the judgment granting it should be affirmed. It will be seen by a reference to the former opinion that no mention is made therein as to whether or not McDuffie had assumed the risk of the negligence by which he was injured. The evidence at the second trial was substantially the same as it was at the first. At the close of the plaintiff's evidence the defendant moved for a nonsuit on the ground upon which the former nonsuit had been granted, and upon the additional grounds (1) that the defendant was not shown to be negligent because there was no duty owing to the plaintiff relatively to the thing by which he was hurt; (2) that the plaintiff could not recover because he was guilty of contributory negligence; and (3) because even if there was negligence chargeable to the defendant, the plaintiff had assumed the risk. The judge overruled the motion. The defendant introduced no evidence; and, after argument before the jury, a verdict was returned in favor of the plaintiff for $3,000. The defendant sued out a bill of exceptions within 30 days directly excepting to the refusal to grant the nonsuit. In addition to the facts stated in the opinion of the court when the case was here before, it should be stated that the pile of iron beams were lying lengthwise on the wharf in an east and west direction. McDuffie was at the east end of the side of the truck nearest the pile of beams, and, while standing with his feet braced back, they were within two or three feet of the pile. Knox, the alter ego of the master, was at the west end of the pile, about 20 or 25 feet from McDuffie, giving orders to the other members of the gang with regard to getting the next beam in shape to be placed on a truck. The beam which injured McDuffie was lying with the east end on the floor of the wharf and the west end on top of the pile. Knox ordered the ten members of the gang at the east end of the beam to pry that end out so they could get between the beam and the pile. When this was done, he ordered them to "turn"; and, the header repeating the word "turn," the beam was turned, and the west end fell on McDuffie, inflicting the injuries for which he sued. McDuffie knew that this beam was the next one to be moved, and he knew it was in an unsecure position on the pile. He had his back turned to the pile, and was intently engaged in pushing the heavily loaded truck. Owing to the noise of other moving trucks (there being about twenty-five or thirty trucks rolling all about him) he did not hear the order to turn the beam; and he did not know it would be turned while he was within range of it. It was customary for the entire gang to help push a loaded truck out of the way of the pile before another beam was moved, but in this instance only one other member of the gang was helping at the truck, while the others were at the east end. Knox was not sworn as a witness, and there is no direct evidence that he actually saw McDuffie at the time he gave the order which resulted in the latter's injury.
Lawton & Cunningham and H. W. Johnson, for plaintiff in error.
Osborne & Lawrence and Shelby Myrick, for defendant in error.
RUSSELL J. (after stating the facts as above).
1. The defendant in error has moved to dismiss the bill of exceptions because it fails to except to the final judgment which was rendered in the court below. This is a direct bill of exceptions, sued out within 30 days, complaining of the refusal of the court below to grant a nonsuit. After reciting that at the conclusion of the evidence for the plaintiff the defendant moved the court to grant a nonsuit upon enumerated grounds, the bill of exceptions continues: After this follow the specifications of the portions of the record material to a clear understanding of the errors complained of. No exception is taken to the verdict of the jury or the judgment of the court rendered thereon. We do not think the motion to dismiss is meritorious. It was held in Rice v. Ware & Harper, 3 Ga.App. 573, 60 S.E. 301, that a judgment refusing a nonsuit is a decision from which a direct bill of exceptions may be taken, because the judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause. If, however, the case has resulted in a mistrial, a direct bill of exceptions cannot be taken to the refusal of a nonsuit made pending the trial because "a motion for nonsuit could not have been made except there be a trial, and where a mistrial occurs there being no trial, there could have been in contemplation of law no motion for nonsuit occurring upon a trial." Augusta Railway Co. v. Tennant, 98 Ga. 156, 26 S.E. 481. In the present case the judge certifies that the trial resulted in a verdict in favor of the plaintiff and not in a mistrial, and therefore we have before us a direct bill of exceptions complaining of an order, which, if it had been granted as claimed by the...
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