Port Royal & W. C. Ry. Co v. Davis

• Decision Date: 14 January 1895
• Citation: 22 S.E. 833,95 Ga. 292
• Parties: PORT ROYAL & W. C. RY. CO. v. DAVIS.
• Court: Georgia Supreme Court

22 S.E. 833

95 Ga. 292

PORT ROYAL & W. C. RY. CO.

v.DAVIS.

Supreme Court of Georgia.

Jan. 14, 1895.

Injuries to Employe — Negligence — Instructions—Argument of Counsel.

1. Where an employe of a railroad company sues tor personal injuries, a request to charge the jury to the effect that the omission of the plaintiff to perform a particular duty, or that the plaintiff, in attempting to discharge the duty, committed an error of judgment, resulting in his injury, would defeat a recovery, — the request leaving out of consideration entirely the question as to whether, with respect to either proposition, the plaintiff was negligent, — was properly refused.

2. While, in the abstract, it is the duty of railroad companies to carefully select and superintend its operatives, machinery, appliances, and appointments of every character used in its business, yet, where the failure to properly select or superintend its operatives is not made a ground of complaint in the declaration, and the negligence imputed to the company was confined to the improper selection of machinery and appliances, it was error, at the request of the plaintiff's counsel, to give in charge the abstract principle of law first above stated, without limiting its application to the subject complained of in the declaration.

3. Where rules are prescribed or regulations adopted for the government of employes in and about the discharge of their duties, it is the duty of the employer to give notice of their existence, and so to promulgate them as to afford to the employe a reasonable opportunity of ascertaining their terms. Knowledge, either express or such as the law will imply, without reference to the means by which it is imparted, binds the employe to compliance. Therefore, a request to charge to the effect that, if the rules be written or printed, each employe should either be furnished with a copy, or advised as to where he can read or hear them read, and which leaves out of consideration all other means of acquiring knowledge, should have been denied, and the court, in giving such instruction, erred.

4. In the trial of an action for injuries alleged to have been occasioned to an employe of a railroad company in coupling cars, it was error to charge that if the employe was instructed by the conductor to couple the cars without a knife or stick, and when about to enter upon the discharge of that duty the conductor was in a position to see that he had no knife or stick, and allowed him to proceed without them, and the employe was then and there injured, he was not negligent in not having such knife or stick, and was entitled to recover, if injured without fault on his part, and by the negligence and carelessness of the agents of the company.

5. Courts should not permit counsel, in the argument of one cause, to refer to positions and arguments of opposing counsel in another, with a view (or which might have the effect) to prejudice, disparage, or discredit the sincerity of his position assumed in the case being tried; but such matters are, to a great extent, within the discretion of the presiding judge, and, unless in the exercise thereof prejudicial error has been committed, this court will not interfere.

(Syllabus by the Court.)

Error from city court of Augusta; W. F. Eve, Judge.

Action by A. L. Davis against the Port Royal & Western Carolina Railway Company for personal injury. Plaintiff had judgment, and defendant brings error. Reversed.

The following is the official report:

Davis sued the railroad company for damages resulting from an injury received while engaged as a train hand in the service of the company, and while coupling cars, whereby his right hand was caught and crushed between the bumpers. He obtained a verdict, and defendant's motion for a new trial was overruled. The declaration alleges that on February 13, 1891, he was instructed to couple certain cars, and in carrying out the order his band was caught, by reason of the link used in coupling being too short, and the too rapid backing of the engine; that he was entirely free from fault, and the accident resulted from the failure of other servants of the company to provide links of sufficient length to permit of safe coupling, and to exercise proper care in the handling of the engine; that he had been in defendant's service but a few days, and had no knowledge or intimation that the place at which the coupling was ordered to be done was any more hazardous or dangerous by reason of being on a curve; that he had no knowledge that one of the bumpers was higher than the other, or that the link was so short as to make coupling dangerous and impossible, until after the accident occurred; that he was furnished with no instrument to aid him in perfecting the coupling, nor with any rule book or direction prescribing the manner in which coupling should be done, but he was ordered by the conductor simply to do the coupling, without any direction, warning, or instruction as to how it should best be done, the conductor knowing at the time that plaintiff had no instrument to aid him in the coupling, etc. The opinion states fully the grounds for new trial ruled on In the second, third, and fourth divisions. The grounds referred to in the first and fifth divi sions are: (1) Error in refusing to charge, as requested: "If it was the duty of the plaintiff to observe the link and the bumpers, and he failed to do so, he cannot recover for any injury received by reason of such failure; or, if he observed them, and formed the opinion that they were safe, he was acting for the company, and, if he made a mistake in this opinion, he cannot recover for the consequences of such mistake." (5) In concluding argument, plaintiff's counsel said he would ask the jury, in the same words of eloquence once used by eminent counsel now representing the defendant, wherein counsel had said, "For every sigh, for every groan, for every pain he had suffered, he should have compensation equivalent to his agony." Counsel for defendant objected to plaintiff's attorney reading law to the jury. Counsel disclaimed reading law to the jury, but said he was simply quoting other's eloquence, just as he would read or quote from the Bible, or Shakespeare, or any worthy author. The court permitted the counsel to conclude the quotation, which he did by saying that "these were to be put on one side of the scale, and, on the other, money, money, until both in even balance hung, and the jury felt that he had been fully and adequately remunerated." Counsel for defendant then and there objected to the same as being irrelevant, improper, illegal, and tending to prejudice the jury.

Ganahl & Ganahl, for plaintiff in error.

C. H. Cohen and J. R. Lamar, for defendant in error.

ATKINSON, J. 1. In a suit by an injured employe against a railroad company for injuries resulting from alleged negligence of the company, where it is sought to be shown, by way of defense, that the plaintiff is not entitled to recover because of his own...