Payne v. Lyon

• Decision Date: 18 November 1922
• Docket Number: 3154.
• Citation: 114 S.E. 892,154 Ga. 501
• Parties: PAYNE, AGENT, ETC., v. LYON.
• Court: Georgia Supreme Court

114 S.E. 892

154 Ga. 501

PAYNE, AGENT, ETC., v. LYON.

No. 3154.

Supreme Court of Georgia

November 18, 1922

Syllabus by the Court.

A ground of a motion for new trial, which complains of the admission of evidence the admissibility of which depends upon the date of the occurrence to which it relates, which date is not set out therein, and which can only be ascertained from an examination of the brief of evidence, is incomplete, and cannot be considered by this court.

The court erred in admitting proof of the probability of an increase of wages of an employee injured while in the service of the Director General of Railroads, due to promotion on account of seniority; such promotion being dependent upon merit and ability as well as seniority.

The Director General of railroads has to be treated as the director of each separate system of transportation under his control; and the separate systems which were operated by him were distinct and independent parties.

On the trial of an action by a fireman against the Director General to recover damages for personal injuries sustained by him while in the service of the Director General, on an engine which was pulling a train of the Louisville & Nashville Railroad over the track of the Western & Atlantic Railroad his injuries being caused by this engine having run into a landslide on the track of the latter company, which had not surrendered complete possession of its track to the Louisville & Nashville Railroad, it was error for the court to admit in evidence, over timely objection of the defendant that they were irrelevant, operating rules of the first-named company; one of said rules requiring the engineer to report to his proper officers any damage to track, structures, or rolling stock, and the other defining the duties of section foremen of said first-named company; it not being shown that any employee of said company had violated said rules.

The trial court did not err in giving in charge to the jury the instruction set out in the fifth ground of the motion for new trial.

Certiorari from Court of Appeals.

Action by C. P. Lyon against J. B. Payne, Agent, etc. A judgment for plaintiff was affirmed by the Court of Appeals (28 Ga.App 246, 111 S.E. 226), and defendant brings certiorari. Reversed.

Charles P. Lyon brought suit against Walker D. Hines, as Director General of Railroads, the Louisville & Nashville Railroad Company, and the Western & Atlantic Railroad Company. These railroads were subsequently stricken as defendants. Lyon was a locomotive fireman of the Louisville & Nashville Railroad which was operated by the Director General of Railroads on Janurary 25, 1019. En route from Atlanta to Marietta on the line of the Western & Atlantic Railroad, which was also operated by the Director General of Railroads, on the night of January 25, 1919, Lyon was injured by the running of the engine of the Louisville & Nashville Railroad, on which he was fireman, and which was pulling a train of that company over the railroad of the Western & Atlantic Railroad, by some arrangement between the two companies, into a slide in a cut between Bolton and Vinings. At the time of said injury, his engine was following an engine which was pulling a train of the Western & Atlantic Railroad, and of which one Ray was engineer. The allegations of negligence in his petition were that, some three or four years prior to the injury, the Western & Atlantic Railroad had blasted on the side of the cut at the scene of the injury, leaving large rocks hanging over the place blasted; that ever since the cut had been negligently maintained in this condition; that for several days and nights before the injury there had been almost continuous rainfall which had soaked the earth; that it was the duty of the defendant to have a trackwalker constantly go over and watch the cut, so as to give notice of danger, which was not done; that when the Western & Atlantic Railroad engine, which preceded the one on which Lyon was employed passed through this cut, the slide had already begun, which fact was known to the engineer of the Western & Atlantic Railroad who was operating the train on the latter, which preceded the one on which Lyon was employed; that it was the duty of the Western & Atlantic Railroad engineer to stop his train and flag and stop the train on which Lyon was employed, which was not done; and that it was the duty of the engineer of the Western & Atlantic Railroad train to stop at Vinings and notify the operator there of said slide, so that he could have the engine on which Lyon was employed held at Bolton by the operator there, which was not done; and that no report of the slide was made until the engineer of the Western & Atlantic Railroad arrived at Marietta, by which time the engine on which Lyon was employed had run into the slide. The plaintiff was seriously injured. A verdict was rendered in his favor for $9,500. The defendant made a motion for new trial, which was overruled. The case was then taken to the Court of Appeals of Georgia; error being assigned, among other things, upon the overruling of the motion for new trial. The Court of Appeals affirmed the judgment of the trial court. Payne v. Lyon, 28 Ga.App. 246, 111 S.E. 226. The case was brought to this court on petition for certiorari. The errors insisted on in this court are those set out in the fifth, tenth, eleventh, and fifteenth grounds of the motion for new trial, which are as follows:

"(5) Movant insists the court erred, on the trial of said case, in charging the jury as follows, to wit: 'If by the exercise of that degree of care and diligence this dirt and rock could have been discovered upon the track and roadbed of the company, and the injury, if you find the plaintiff was injured, could have been avoided, then the Director General of Railroads would be liable to the plaintiff for whatever injury he sustained. If you find that the Director General of Railroads was in the exercise of ordinary care and diligence, through his servants and agents that by the exercise of ordinary care and diligence it could not have been discovered that this dirt and rock were upon the roadbed and track of the railroad company operated by him, or that it was due to causes over which he had no control, or that it came so suddenly or was there for so short a time, or for any other reason which appears in proof, if it so appear, that it was impossible for it to be discovered--impossible for it to be prevented or discovered--and as a result of this presence of dirt and rock upon the track, if you find it was there, and for these reasons the plaintiff was injured, the Director General of Railroads was in the exercise of ordinary care and diligence through his agents and servants, then, notwithstanding that the plaintiff may have been injured, the Director General of Railroads would not be liable for such injury. You take all the evidence, consider it, apply it to the law, and find what the truth of the case is.' The error assigned upon this charge is in the giving in charge by the court the following part of the instruction from the above charge, to wit: 'If it do appear that it was impossible for it to be discovered--impossible for it to be prevented or discovered.' And the ground of the assignment is that that part of the instruction is not the law in the case. That in this case plaintiff was an employee of the defendant, and that the degree of negligence that a plaintiff could recover on would not go on an impossibility, and that the defendant would not have to show that it would have been impossible to have prevented anything in order to avoid a judgment against him. This instruction was misleading, confusing, and erroneous.

(10) Movant insists the court erred on the trial of said case in the following particular to wit: Plaintiff's counsel asked witness for plaintiff, C. W. Moody, when being examined as a witness for plaintiff: 'Q. State whether or not you know anything about any other slide taking place there two or three years before that in that same cut and wrecking a passenger train. Mr. Clay: I object to wreck of a passenger train, or any other wreck except this wreck, as incompetent and immaterial. The Court: I overrule the objection. I think it is admissible to show notice. Q. What do you know about that? A. I don't know as there has ever been a wreck there before. Q. What do you know about a slide two or three years before that when a passenger train was held up? A. There was a slide there; that was the slide that came on Saturday night. Q. About when was that? A. 1919. Q. The other slide you had reference to, though? A. That is the only slide that I have ever known; there has been rocks to fall off there. Q. Tell us about that. Mr. Clay: I object to rocks falling any other time; unless there was a slide and it went on the track, it couldn't have been noticed. I object to it as immaterial, irrelevant, and incompetent. The Court: Overrule the objection.' Which ruling of the court movant says was error for the reason it does not show there was any slide, or any wreck of trains, while the Director General was in charge of the railroads, and defendant could not have been responsible for anything that happened, or might have happened, before that time, and would not shed any light on that action that defendant could be responsible for, and the defendant's objections should have been sustained.

(11) Movant insists the court erred on the trial of said case in the following particular, to wit: Plaintiff's counsel asked plaintiff, when being examined as a witness in his own behalf: 'Q. State whether or not there have been men who have not been in the service as long as you, since this accident, who have been promoted by seniority and went ahead of you as

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