Ousley v. Cent. R.R. & Banking Co

• Decision Date: 19 January 1891
• Parties: Ousley v. Central Railroad & Banking Co.
• Court: Georgia Supreme Court

12 S.E. 938

86 Ga. 538

Ousley

v.Central Railroad & Banking Co.

Supreme Court of Georgia.

Jan. 19, 1891.

Injury to Railroad Employe—Defective Appliance.

1. Where the evidence shows that a drawbar supplied by a railway company to be used in coupling cars was used on two occasions, working well on the first, but failing to work on the second, though twice tried in a proper manner, a jury might, in the absence of any explanation from the company, infer that the implement was defective,

2. A second effort, on the same occasion, to couple cars with a draw-bar, the first having failed because the bar had become fixed in its position, and not readily movable, is not necessarily improper or inexcusable where the bar had been shaken loose after the first effort, and before the second was made, although the second failed for the same reason as the first, and the plaintiff was thereby injured.

(Syllabus by the Court.)

Error from superior court, Wilkinson county; Jenkins, Judge.

Gustln, Guerry & Hall.for plaintiff in error.

Lawton& Cunningham and Calhoun, King & Spalding, for defendant in error.

Bleckley, C. J. It would be safer to sjbmit this case to a jury. The evidence shows that the draw-bar was used in Macon, and worked well. The next attempt at using it was atGordon, when it proved to be tight, so that it could not. be raised at the first trial. It was shaken loose, and another trial was made, when it again failed to work, and the plaintiff was injured in consequence. This is all we know from the evidence touching the history of this draw-bar, save that after the plaintiff was injured the coupling was successfully made by some other person.

1. A jury could infer that the draw-bar was defective, it having failed in its proper functions twice out of three attempts at using it. It would not be unreasonable to conclude that an implement which proves inefficient in two-thirds of the instances of its use is not a fit implement to be supplied by a railway company to those of its employes who are engaged in such hazardous service as coupling cars.

2. The court seems to have ordered the nonsuit because the plaintiff ought to have desisted after making one effort to couple the cars at Gordon, and that he was in fault for making a second effort. But a part of the plaintiff's testimony was as follows: "At Gordon, when the engine came back once, and i saw that the coupling would not go high enough, I took the bar and shook it and it shook loose; It was tight at first. I...