Seaboard Air Line Ry. v. Bishop

• Decision Date: 22 February 1909
• Parties: SEABOARD AIR LINE RY. v. BISHOP.
• Court: Georgia Supreme Court

63 S.E. 1103

132 Ga. 71

SEABOARD AIR LINE RY. v. BISHOP.

Supreme Court of Georgia

February 22, 1909

Syllabus by the Court.

Where in an action for damages for a personal injury, the presiding judge erroneously gave to the jury an instruction which authorized them to add to their verdict and include in it interest at the rate of 7 per cent. from the date of the injury, and where the evidence clearly shows the date of the injury and the date of the verdict, so that any possible amount allowed as interest which may have been added to the verdict in pursuance of the erroneous instruction could be accurately calculated and definitely determined, the discretion of the trial judge in allowing any possible interest which may have been included in the verdict to be written off from it and the judgment, and thereupon refusing to grant a new trial upon the ground of such erroneous charge, will not be disturbed.

(a) In this case the judge undertook to correct the possible effect of an erroneous charge by giving instructions in the manner above referred to, but, on account of an error in calculation, the amount so allowed to be written off was insufficient, by a small amount, to cover the possible amount which may have been included in the verdict as interest. Upon review, after ascertaining from the record the greatest possible amount which may have been included in the verdict as interest, this court will affirm the judgment of the trial court in refusing a new trial on the ground of the erroneous charge referred to, with direction, however, that, within 30 days from the filing of the remittitur from this court in the court below, the plaintiff write off from the verdict and judgment the amount specified in the opinion in this case which should have been written off as representing any possible interest which may have been included in the verdict; but, upon a failure so to write off, the judgment to be reversed.

[Ed Note.-For other cases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162; ^[*] Appeal and Error, Cent. Dig. § 4464; Dec. Dig. § 1140. ^[*]]

There was sufficient evidence to support the verdict.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. §§ 278, 281. (FN*) ]

Error from Superior Court, Madison County; H. M. Holden, Judge.

Action by E. E. Bishop against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant brings error. Affirmed on condition.

Per Atkinson, J., dissenting.

Where a yard conductor, while passing over a loaded flat car to reach the front of the train to see that it was properly side-tracked, stepped upon a nail, evidence held to authorize a finding that he was not guilty of any such violation of the rules of the company at the time injured as precluded recovery.

Bishop brought an action for damages against the Seaboard Air Line Railway on account of a personal injury. A verdict in his favor was rendered. The defendant moved for a new trial which was denied, and it excepted. Under the pleadings and evidence it appears, among other things, that the plaintiff, while employed by the defendant as a yard conductor at Athens, Ga., was instructed by his superior officer to relieve the conductor on a passing freight train, and to act as such conductor until the train arrived at Greenwood, S.C. The train consisted of 24 or 25 cars, all loaded, and a conductor's cab, upon which was a cupola. In obedience to his orders, after leaving Athens, it became necessary to side-track the freight train at Colbert, Ga., in order to allow another train to pass. As his train was approaching Colbert, as it was his duty to do, the plaintiff started over the top of the train in order to reach the front, so that he might see that the train was properly side-tracked, and that it left a clear track on the main line for the other train, which was due in a very short time. He knew that there were some shanty cars, the coupling of which were in bad order, and, if the brakeman missed the coupling, there was danger of knocking them out on the main line. One of the cars over which he had to pass was a flat car loaded with two boilers and a lot of iron piping. The boilers were on the rear part of the car, and occupied it from one side almost to the opposite side, thus leaving a narrow space which could be used as a passageway. The front of the car was filled with the piping, which was laid parallel with the length of the car, and filled it entierly from one side to the other. When the plaintiff reached the piping, it was necessary for him to walk across it in order to reach the ladder on the next car. When about half way across the piping, he felt a severe pain in his foot, and, looking down, discovered that a large fortypenny nail had stuck entirely through the front part of the foot under the ball of the toe in a slanting direction, coming out on top of his foot about an inch and a quarter from the root of the toe. It was a dark gloomy day, and was raining at the time of the injury, and the plaintiff did not see the nail before it entered his foot, but found the nail securely fastened between the piping, so that it was difficult to get his foot extricated. The nail was no part of the machinery or piping, and did not have any connection with either. The car was consigned from Atlanta, Ga., to Delk, Fla. It was neither the plaintiff's duty, nor had he time, to inspect the car or the manner of its loading. The ground of negligence charged in the petition was in allowing and permitting the nail "to get and remain between the said piping, sticking up some two or three inches, slanting backward, and to be firmly fastened *** in a place which would necessarily be traversed, used, and walked over by the brakeman and petitioner." There was no direct evidence as to the position of the nail, or how or why or when or by whom it was placed upon the car, nor was there any testimony upon the subject of inspecting the car or the manner of the loading by the defendant at any time. Certain rules of the defendant relative to the duties of employés were introduced as follows: "(1) Employés whose duties are prescribed by these rules must provide themselves with a copy. (2) Special instructions, given by authority of parties heretofore designated, must be observed while in force. (3) Employés are required to be conversant with, and obey, the rules and special instructions. If in doubt as to their meaning, they must apply to proper authority for explanation. *** (27) Every employé is required to exercise the utmost caution to avoid injury to himself and others, especially in the switching and other movements of trains. *** (39) All persons entering the service of this company will be required to sign an acknowledgment that they understand, and agree to obey, the rules and regulations of this company with respect to their duties. No person will be considered engaged as a trainman until he has been accepted by the trainmaster, and has signed the agreement to observe and comply therewith. *** (45a) The proper place for the freight train conductor, while his train is in motion, is in the cupola of his caboose, if he has one. If the caboose should not be provided with a cupola, he will then maintain such position, either on the top or inside, as will give him a full view of his train, and enable him to see that his men perform their duties, and that they go out promptly when necessary to flag. He must also keep a sharp lookout, especially when rounding curves. He should not ride on the engine except in case of necessity." The evidence tending to show that the plaintiff had notice of these rules was from the plaintiff himself, who testified with reference thereto as follows: "It [rule book exhibited] is rules and regulations of the Seaboard Air Line. I had one similar to that once, when I was first put on the road. This is about as large. That is not the only difference. There is a good deal of difference. I don't remember the date of the rules I had. I don't remember what time I went to work with the Seaboard. It has been a good long while. I said about seven or eight or ten years ago. I can't say about whether these are the same rules. I didn't have a rule book long. It was taken from me and some changes made in it, and I never did get it back. When I had the book, I familiarized myself with the book as best I could. I really can't say when was the last time I had a rule book. I am not familiar with rule No. 1: 'That employés must provide themselves with a copy of the rules.' Don't know anything about that rule. I am not familiar with that rule. I might have heard of it. I have heard rule No. 2, that employés must be conversant with and obey the rules, and, if in doubt of their meaning, must apply to other authority for instruction. I don't know about No. 27, which says that every employé must exercise the utmost caution to avoid injury to himself and other employés, especially in switching of trains. There may be a whole lot in there that I am acquainted with, and a whole lot that I am not familiar with. They should have given me a rule book when I went back there, and they failed to do it. I did not ask for one. It wasn't my business to do so. I don't know anything about rule 47 that required a conductor to ride in the cupola while the train was in motion. It is like I said: I may have heard of it and may have forgotten it." Another witness testified: "I can't tell you

how long that book has been in use by the Seaboard Air Line. It was in use at the time Mr. Bishop received that injury. I examined this book this morning so as to be able to identify it." The engineer of the train on which the plaintiff was hurt testified: "This is the rule book in use by the Seaboard Air Line at that time, but it was revised in 1897 and was the...