Shumate v. Louisville & N.R. Co.

• Decision Date: 04 January 1908
• Citation: 158 F. 901
• Parties: SHUMATE v. LOUISVILLE & N.R. CO. et al.
• Court: U.S. District Court — Northern District of Georgia

158 F. 901

SHUMATE v. LOUISVILLE & N.R. CO. et al.

United States Circuit Court, N.D. Georgia.

January 4, 1908

This suit was brought by the plaintiff against the defendants to recover damages for certain injuries alleged to have been received by the plaintiff while endeavoring to alight from a moving train of the defendant companies, as it was slowing down preparatory to stopping at the station in Atlanta. Plaintiff alleges that he was an employe of defendants, but was riding upon defendants' train as a passenger, coming from Ingleside to Atlanta; that as the train approached the station in Atlanta, passing through the railroad yards plaintiff went upon the platform of the car, preparatory to alighting from the train, and while standing upon the platform, at or near the top step with his hand upon the hand rail or grab iron, the train gave a sudden violent jerk which threw the plaintiff from the platform to the ground and under the wheels of the car, and that plaintiff's leg was so badly crushed that it had to be amputated. To the declaration setting up these allegations, a general demurrer was filed upon the ground that the declaration failed to show a cause of action. Argument was had on the demurrer, and the matter submitted.

Arnold & Arnold, for plaintiff.

McDaniel Alston & Black, for defendants.

NEWMAN District Judge (after stating the facts as above).

Under the decision of the Circuit Court of Appeals for this circuit in Illinois Central R.R. Co. v. Warren, 149 F. 658, 79 C.C.A. 350, it is clear that this suit cannot be maintained unless the doctrine of comparative negligence, as it exists in Georgia, can be invoked by the plaintiff.

This doctrine of comparative negligence is gathered from two sections of the Civil Code of Georgia of 1895. Section 2322 is in this language:

'No person shall recover damage from a railroad company for injury to himself or property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him.'

And section 3830 is as follows:

'If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.'

From these two sections it is clear that if the plaintiff, by the exercise of ordinary care, could have avoided the injury he cannot recover. Here, the plaintiff went voluntarily upon the platform of the car while it was in motion, and was, as he says in his declaration, at or near the top step with his hand on the hand rail or grab iron, and when the sudden and violent jerk came he was thrown from the platform to the ground under the wheels of the car. The train was at that time, as gathered from the declaration, passing through the railroad yards, and near the depot. It should, it seems to me, be a matter of common knowledge as to how trains stop and start in passing through railroad...