Sims v. Macon & Western R. R. Co.

• Decision Date: 31 March 1859
• Citation: 28 Ga. 93
• Court: Georgia Supreme Court
• Parties: SIMS. vs. MACON & WESTERN R. R. COMPANY.

28 Ga. 93

SIMS. vs. MACON & WESTERN R. R. COMPANY.

Supreme Court of the State of Georgia

MARCH TERM, 1859.

Nonsuit, in Pike superior court. Decision by Judge Cabaniss, at October Term, 1858.

This was a proceeding under the statute, by Sherrod Sims against the Macon & Western Railroad Company, to recover the value of a negro man slave, killed by said road.

It appeared from the evidence of plaintiff, that the negro, about fifty years old, was sitting on the end of a cross-tie on said road, and was struck by the cow-catcher attached to the front of the locomotive, and killed—he was sitting on the outside of the road, but the cow-catcher being wider than the road, he was caught by it and terribly mangled, and killed instantly. He could have been seen by the engineer at the distance of several hundred yards—the whistle was not blown until the cars came within about twenty steps of him—he gave no heed tothe notice, (the presumption is he was asleep,) and was struck and killed as above stated. It was a timber train proceeding down grade at the rate of about twenty miles per hour, and the place was not at or near any crossing, and it was in the day and the sun shining. The negro was sober and of good character, and worth about a thousand dollars. He could have seen the train a thousand yards up the road. When killed he was sitting with his axe between his legs—his thigh and leg were torn off.

The case was submitted to a jury under the provisions of the act of--, who found for the plaintiff one thousand dollars, from which verdict defendant appealed.

Upon the trial on appeal before Judge Cabaniss, the plaintiff offered to prove the saying and declarations of the conductor and engineer in relation to the killing. These sayings were made at Milner, a station about a mile below where the accident occurred, and after the train arrived there, and while stopping there. The train had previously stopped a short time immediately after the accident occurred. Defendant's counsel objected, and the court sustained the objection and repelled the evidence, on the ground that the sayings were not made when the killing occurred, and that they were made when not acting as agents for defendant, and that they constituted no part of the res gestæ. And plaintiff excepted.

Plaintiff having closed, defendant's counsel moved for a non-suit, on the ground that the proof showed that defendant was not liable. The court sustained the motion and ordered a non-suit, and plaintiff excepted.

Green & Stuart, and Floyd, for plaintiff in error.

Moore, Gibson, and Peeples, contra.

By the Court.—Benning, J., delivering the opinion.

1. Was the court below right in rejecting the sayingsof the conductor and engineer? We think so. To make those sayings admissible, it ought to have appeared that they were a part of the res gestœ. But that did not appear. The evidence did not show what was the interval between the accident and the sayings, but it did show that it must have been a considerable interval. The train stopped immediately after the accident; it then ran to Milner, a mile off, and stopped again: after its halt there, the words were spoken, but how long after does not appear. For ought that appears, the interval between the accident and the sayings, was quite long enough to take the sayings out of the rule as to the res gesiæ. (See Mac. & Wes. R. R. vs. Davis, decided at Macon, January, 1859.)

Was the court below right in granting the non-suit? We think so.

The case, on the part of the suffering party, Sims, was a case of the grossest negligence. There is not a single thing to serve as an excuse for his negro's being on the rail road track of the company; and that track was a place of notorious danger. To go asleep in such a place, could be nothing short of an act of the grossest negligence. And yet, that, probably, is what the negro did.

Assuming, then, that Sims, the losing party, was guilty of gross negligence, (the conduct of his negro being pro hac vice, his conduct,) could he be entitled to an action against the rail road company, whose train produced the loss?...