Perry v. The Cent. R.R.

• Decision Date: 28 February 1881
• Parties: Perry. vs. The Central Railroad.
• Court: Georgia Supreme Court

66 Ga. 746

Perry. vs. The Central Railroad.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

[This case was argued at the last term, and the decision reserved. Jackson, Chief Justice, having been of counsel, Judge Stewart, of the Flint circuit, presided in his place.]

New trial. Railroads. Damages. Negligence. Before Judge Simmons. Bibb Superior Court. October Adjourned Term, 1879.

Reported in the decision.

John & J. C. Rutherford, for plaintiff in error.

R. F. Lyon, for defendant.

Stewart, Judge.

The plaintiff brings his action to recover damages of the defendant for injuries received by him while on the, track of defendant's road.

This case has been tried twice in the court below, and by writ of error was brought to this court and heard here as will appear in 58 Ga., 461.

The plaintiff on the first trial obtained a verdict against the defendant. A motion was made for a new trial, and the same was overruled, and defendant brought the case to this court, and a new trial was granted. A second verdict was obtained by plaintiff, and a motion was made by the defendant for a new trial, which was granted by the court below. The judgment of the court granting a new trial is here for review. The facts of the case as presented at both trials are very similar.

On the second trial, the testimony was in substance as follows: On the 13th of October, 1874, plaintiff was in the city of Macon; purchased a ticket of defendant for Savannah, left the Brown House for the depot about thirty minutes before time for train to leave, as was his information; went aboard the sleeping car of defendant's road, found the porter arranging the berths, but had not finished all of them for occupancy; selected one about the middle of the car; deposited satchel and umbrella; went out of car to platform. Plaintiff was going to Savannah to get married, expected to meet the brother of his intended wife before leaving Macon, and believed he might meet with him on the platform, situated along the track of defendant's road. When about twenty or thirty feet from the car he met a friend, some conversation occurred, took his friend by the hand, and while thus standing, the cars, without any signal;moved off. Some persons ran by plaintiff, saying, " the cars are gone !" Plaintiff jerked loose from the hand of his friend, and ran across the track of defendant\'s road, and ran down on the platform from the opposite side from where he had been standing. Plaintiff had been standing on platform between Central and Southwestern Railroad tracks before running, continued running until he reached the east end of the car-shed, and while passing through a gateway near the arch of the car-shed, plaintiff came in contact with an engine of the Macon and Augusta Railroad, which was coming up and into the car-shed. His right leg came in contact with the pilot of the engine, and was crushed by it, and had to be amputated. Plaintiff ran rapidly, his purpose being to see if the train on defendant\'s road would not stop after passing out of car-shed, intending to get aboard if it did so. Some twenty feet from the east end of the car shed the cars on defendant\'s road passed over a switch, which had to be changed and then the engine and cars of the Macon and Augusta Road would pass up to and under the car-shed on defendant\'s road. The gateway between the track and the arch was very narrow, in passing out of the car-shed.

The accident occurred in the night. The car-shed was lighted, but after passing out from under the shed, there was no light. Plaintiff had no information that the cars of the Macon and Augusta Road would come in on the track of defendant's road. The officers on defendant's road did not know that the plaintiff was injured until the next morning while in Savannah. Plaintiff gave testimony as to his age, income, capacity to labor, health, suffering, etc.

Witnesses for defendant testified that they gave the usual signals, by ringing the bell and crying "all aboard." That the cars left on schedule time, or a little after, which was thirty-five minutes past 7 o'cock, P. M. That in making up the train the engine stood outside of the car-shed, beyond the road-crossing, and the rear end of the car wasnear the ticket office. That the train was about two hundred yards long, and moved beyond the switch before the cars of the Macon and Augusta Road could enter the shed. That the Macon and Augusta Railroad was a separate corporation from defendant, and by contract used the track of defendant\'s road in passing in and out of the car-shed. The speed of the outgoing and incoming train was given in evidence; a diagram was put in evidence showing location of the track, length of cars and location of switch, etc. Upon the foregoing statement of facts, said case, with the charge of the court, was submitted to the jury, who returned a verdict in favor of plaintiff for $5,000.00.

The defendant made a motion for a new trial, which was granted.

The principal ground in the motion for a new trial appears to have been, that the court charged the jury: " If plaintiff by the exercise of care and caution could have prevented the consequences of defendant's negligence to himself, then the plaintiff could not recover."^*

Plaintiff in this case insists that, at the time of the accident, h...