Prather v. Richmond & D.R. Co.

• Decision Date: 11 July 1888
• Citation: 9 S.E. 530,80 Ga. 427
• Parties: PRATHER v. RICHMOND & D. R. Co.
• Court: Georgia Supreme Court

9 S.E. 530

80 Ga. 427

PRATHER v. RICHMOND & D. R. Co.

Supreme Court of Georgia

July 11, 1888^[1]

Error from city court of Atlanta; VAN EPPS, Judge.

Action by Mrs. Prather against the Richmond & Danville Railroad Company for the death of plaintiff's husband. Judgment for defendant, and plaintiff brings error.

Hoke & Burton Smith, for plaintiff in error.

Hopkins & Glenn, for defendant in error.

SIMMONS J.

This case comes here on a writ of error sued out by the plaintiff because she alleges that the court below erred in refusing her a new trial. There are 12 grounds taken in the motion. The first two were not insisted on before us, the counsel admitting that if the court had committed no error there was sufficient evidence to sustain the verdict. It therefore becomes necessary for us to examine the alleged errors of law, and determine from them whether the plaintiff in error is entitled to a new trial or not. We begin with the third ground of the motion, which is: (3) Because the court erred in charging the jury as follows: "If this was a construction train engaged in the business of carrying laborers and material to be used by them from one point on the road to another, and one or more of the same class of laborers in which the plaintiff's husband was, and selected indifferently from their number,--now one and then another, --was charged with the duty of manning the brakes of the flat-car, and keeping a lookout and giving signals of danger ahead, then the plaintiff's husband was a co-employe with such other laborers, and with the conductor or boss of the squad and the engineer and fireman of the engine, and engaged in the same manner with them; and, in order for the plaintiff to recover on this state of facts, it must appear that Wesley Prather was wholly blameless,--that is, that he himself was guilty of no negligence which contributed to the cause of the injury. If he immediately or remotely, directly or indirectly, caused it or any part of it, or contributed to it at all, then his wife cannot recover." It is objected to this charge, first, that the court in the charge placed the deceased, when riding on the flat-car, as an employé engaged about the work, although at the time he had nothing to do with the movement of the train; and which required him to be blameless before he could recover.

1. We think the charge was correct. The character of this train and the nature of the deceased's employment must be borne in mind. This was a construction train, used for the purpose of hauling steel rails, dirt, and anything else that was necessary for repairing the road-bed. The evidence shows that this train would have been useless without hands to load and unload it; that it had a crew of from 18 to 26 constantly employed; that Prather, the deceased, was one of this crew and his business was to do anything to insure the successful working of the train. The train, equipped for its work consisted in the locomotive, the steam-power, the cars, and the physical force, of which latter the deceased represented a part. He belonged to this train, and we think was an employé on it, and co-employe with the balance of the crew, although at the time of the accident he had no active duty to perform. The fact that he had no active duty to perform while riding from one point of work to another did not make him any the less an employé during those times. He could not be an employed while at work at one mile-post, and, having finished there, get on the car to go to the next mile-post, and while riding the mile become a passenger, and at the end of the mile become an employed again. "The true test of fellow-service is community in that which is the test of service, --which is subjection to control and direction by the same common master in the same common pursuit. *** 'In order to constitute fellow-laborers, *** it is not necessary that the servant causing and the servant sustaining the injury shall both be engaged in precisely the same, or even in similar, acts. Thus, the driver and guard of a stage-coach, the steersman and rowers of a boat, the man who draws the red-hot iron from the forge and those who hammer it into shape, the engineman and the switcher, the man who lets the miners down into, and who afterwards brings them up from, the mine, and the miners themselves, --all these are fellow-laborers *** within the meaning of the term."' 3 Wood, Ry. Law, § 388, and authorities there cited. It will be seen, by reference to the plaintiff's declaration, that she calls him an employed or "trainhand." It must be borne in mind also that this train was not a freight or passenger train, but a gravel or construction train, used by the defendant as such, and not used as common carrier of goods or passengers. It is argued that this case is covered by the case of Railroad Co. v. Ayers, 53 Ga. 12. We do not think so. If that case was ruled correctly (of which I have grave doubts) it does not conflict with our ruling in this case. The facts are entirely different. In that case Ayers did not belong to that train, as Prather did to this. He was a "track raiser," a separate and independent employment from that of a train-hand, who is part of the crew of the train.

2. The second criticism made upon this part of the charge is that the use of the words, "immediately or remotely," etc., was argumentative, and calculated to mislead the jury. We do not think that this was error. It was simply a definition of the words "without fault," used by our Code. Besides, it is in the very language used by this court in Railroad Co. v. Mitchell, 63 Ga. 173, when construing section 3036, and defining the meaning of these words, and is not inconsistent with what has been ruled in other cases, that the contributory negligence of the employeé must be substantial.

3. Exception is made as the fourth ground of the motion to the charge, because the court charged the jury that "the burden is on the plaintiff to show that her husband was without fault, or that the defendant was in fault." This rule has...