Smith v. Atl. Coast Line R. Co

• Decision Date: 23 November 1908
• Docket Number: (No. 1,310.)
• Citation: Smith v. Atl. Coast Line R. Co, 62 S.E. 1020, 5 Ga.App. 219 (Ga. App. 1908)
• Parties: SMITH. v. ATLANTIC COAST LINE R. CO.
• Court: Georgia Court of Appeals

62 S.E. 1020

5 Ga.App. 219

SMITH.

v.ATLANTIC COAST LINE R. CO.

(No. 1, 310.)

Court of Appeals of Georgia.

Nov. 23, 1908.

1. Carriers (§ 316^*) — Operation of Railroad — Damages—Presumptions and Burden of Proof.

The presumption of negligence does not arise against a railway company for damages done to person or property until it appears that the proximate cause of the injury was occasioned through the operation of its "locomotives, cars, or other machinery, " or by the act or misfeasance of some person in its employment and service.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1283-1294; Dec. Dig. § 316.*]

2. Carriers (§ 320*)—Injuby to Intending Passenger — Evidence — Question for Jury.

Independently of the presumption of negligence, the plaintiff in the present action made sufficient proof of his case to require a submission of it to the jury, and it was erroneous for the court to grant a nonsuit.

[Ed. Note.—For other cases, see Carriers, Dec. Dig. § 320.*]

(Syllabus by the Court.)

Error from City Court of Waycross; Jno. T. Myers, Judge.

Action by James m. Smith for personal injuries against the Atlantic Coast Line Railroad Company. Plaintiff was nonsuited, and brings error. Reversed.

On November 21, 1905, the plaintiff, while standing in front of the defendant's passenger station at Waycross, was severely injured by the explosion of two railway torpedoes run over by a passing locomotive. He was intending to take a train for Jacksonville, Fla., which according to the published schedule left Waycross at 6:20 a. m., but which he thought left at 6 o'clock. He had spent the night sitting up with a sick friend near the station. At about 4:30 o'clock he left the friend's house, and walked across to the ticket office, and, finding that closed, he went into the restaurant connected with the station, ate a sandwich and drank a cup of coffee; this taking about 15 minutes. He went out to the front of the building, upon a gravel walkway, over which passengers walked from the waiting rooms to the ticket office, restaurant, etc. He had started to the white waiting room, but stopped on the walkway and engaged in conversation with another gentleman. While they were thus standing talking, in front of the waiting room, about seven or eight feet from the tracks, an engine passed and exploded two torpedoes immediately in front of them. The explosion made considerable noise, and a piece of the metal covering in which the explosive substance was contained struck the plaintiff, one piece piercing his eye, another making a wound upon his stomach, and still another going into his leg. The torpedoes are made of dynamite or other explosive substance contained in a metal covering about 1 1/2 inches wide and about 2 inches long, with tin projections on either side, so that the torpedoes may be fastened to the top of the rail by clamping the tin projections under the sides of the rail. They are used as danger signals in train service. Under railway rules two torpedoes indicate one thing, while one torpedo indicates another in stopping and flagging trains. They were furnished to engineers and firemen at supply stations located at different points; one of these supply stations being located at Waycross. It was against the rules of the company to put them out in the yards around stations, though they were occasionally exploded there. The yards of the defendant company at Waycross are extensive and contain a large number of tracks around and adjacent to its passenger station. It has lines of railroad coming into this station from five different directions—from Savannah, Brunswick, Jacksonville, Montgomery, and Albany—and it also handles trains from a branch of the Atlanta, Birmingham & Atlantic Railroad through the same yards. The restaurant and usually the waiting rooms are kept open all night. The defendant's yardmaster, who testified as a witness for the plaintiff, stated that he was on duty that night handling trains in the yards; that there was no necessity for putting down torpedoes in the yards as other means of signaling were arranged for there; that, if one of the employés had desired to put torpedoes down, it might have been done without asking him, but that he did not know of any being placed in the yard by any of the employés that night; that, so far as he knew, torpedoes might be obtained by other than railway companies by purchase or otherwise; that sometimes in transporting torpedoes from the supply rooms to the trains employés carried them in their pockets, and they might be dropped occasionally, though he did not know of any being lost thus; that it would be improbable that a locomotive could explode torpedoes unless they were on top of the rail. The flange of the engine wheel would hardly explode one lying on the ground near the rail. These facts appearing in the testimony, the court granted a nonsuit on motion of the defendant.

Wilson, Bennet & Lambdin and Crawley & Crawley, for plaintiff in error.

Bennet & Conyers and S. W. Hitch, for defendant in error.

POWELL, J. (after stating the facts as above). 1. Much of the discussion of the ease by counsel has been upon the point as to whether the presumption of negligence attached to the defendant upon proof that the plaintiff was injured by the explosion of a torpedo run over by the engine. Civ. Code 1895, § 2321, provides for a presumption of negligence against railway companies where the damage is done "by the running of the locomotives or cars or other machinery or * * * by any person in the employment and service of such companies." The presumption relates only to the particular acts of negligence set out in the petition. In this case the proximate cause of the injury is not alleged to have been any negligence in the operation of the locomotives. The word "running, " as used in this code section, does not refer so...