Seaboard Air Line Ry. Co. v. Hunt

• Decision Date: 15 January 1912
• Docket Number: 3,344.
• Citation: 73 S.E. 588,10 Ga.App. 273
• Parties: SEABOARD AIR LINE RY. CO. et al. v. HUNT.
• Court: Georgia Court of Appeals

73 S.E. 588

10 Ga.App. 273

SEABOARD AIR LINE RY. CO. et al. v. HUNT.

No. 3,344.

Court of Appeals of Georgia

January 15, 1912

Syllabus by the Court.

Under Civil Code 1910, § 2782 et seq., an employé (or one in his right), suing for injuries inflicted upon him by the alleged negligent acts of fellow servants in railway employments, is not barred from his recovery by contributory negligence unless it amounts to a failure to exercise ordinary care.

Contributory negligence on the employé's part may consist in a violation of a valid rule promulgated by his employer. However, when an employer offers in evidence a rule for the purpose of showing that the employé has been guilty of negligence by violating it, the employé may avoid the effect of it by showing that the master made it, not in good faith and with the intention that it should be obeyed, but merely for the purpose of shielding himself behind it in the event that an employé, expected to violate it, is injured, or may show that the employer has waived or abrogated the rule by knowingly allowing continuous and customary violations of it by his employés generally.

(a) Where a railway company promulgates rules for the guidance of its employés, they will be most strongly construed against the company; and, if it be doubtful whether they cover the act in question, they will not be sufficient to render that act, if committed by the servant, negligence per se.

(b) If it be at all doubtful as to whether the rule was intended to apply to a particular kind of service, and it is shown that both before and after its promulgation that service had been with the master's knowledge, constantly performed by the employés in violation of the terms of the rule, the evidence of the practice of the employés in this respect is relevant not only where a waiver of the rule is relied on to prove the waiver, but also to aid in the construction of the rule itself.

Depositions of a witness taken under provisions of the Civil Code for use in a pending case may, in the discretion of the court, be read in evidence, notwithstanding the presence of the witness at the trial.

For the court to state to the jury the allegations of the petitioner and the insistences of counsel is not violative of the Code section against the judge's expressing or intimating an opinion upon the facts.

The trial was free from error, and no reason appears for granting a new trial.

Error from City Court of Cordele; E. F. Strozier, Judge.

Action by Mrs. C. E. Hunt against the Seaboard Air Line Railway Company and others. Judgment for plaintiff, and certain defendants bring error. Affirmed.

W. H McKenzie and E. A. Hawkins, for plaintiffs in error.

F. G Boatright and J. T. Hill, for defendant in error.

POWELL, J. (after stating the facts as above).

Without going into details, it is sufficient to say that the evidence was in conflict as to whether the switchman moved or could have moved the switch while the engine was in passage. On this point the verdict of the jury is conclusive. The only other question raised by the general grounds is whether the plaintiff himself was guilty of such contributory negligence as to bar a recovery on his part. Without enlarging upon the discussion of this question at present, we will simply say that the evidence was such as to justify the verdict and that the verdict is not without evidence to support it. The case was determinable, not under the old law, which required an employé, or one suing on his behalf, to show that he was free from fault, or he could not recover for an injury inflicted by the act of a fellow servant, but was governed by the new rule, now embodied in Civil Code 1910, §§ 2782-2787, inclusive.

2. The plaintiffs in error contend that there was no issue as to the plaintiff's contributory negligence; that concededly he was guilty of such contributory negligence, amounting to a failure to exercise ordinary care, as to bar a recovery under Civil Code 1910, § 2783. Under that section, contributory negligence amounting to a failure to exercise ordinary care will absolutely bar recovery, while contributory negligence of a less degree will diminish the recovery.

3. The insistence of counsel is that inasmuch as the petition alleges that the plaintiff was engaged in making a "flying switch" at the time he met his death, and inasmuch as it was shown on the trial that the company had a rule, known to him and agreed to by him, prohibiting the making of a "flying switch," his engagement in that act was necessarily contributory negligence, and was as a matter of law the proximate cause of his injury. The defendant in error resists this contention with the counter contention that the making of the "flying" switch was a remote, and not the proximate, cause of the injury that the proximate cause was the switchman's negligent act in turning the switch under the engine; also that the rule of the company upon the subject did not apply to switch engines handling cars in the yards, but only to trains, in the sense that that term is...