Southern Ry. Co v. Diseker

• Decision Date: 31 March 1914
• Docket Number: (Nos. 581 and 632.)
• Citation: 13 Ga.App. 799,81 S.E. 269
• Parties: SOUTHERN RY. CO. v. DISEKER. DISEKER. v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

(13 Ga.App. 799)

81 S.E. 269

SOUTHERN RY. CO.

v.DISEKER.

DISEKER.

v.SOUTHERN RY. CO.

(Nos. 581 and 632.)

Court of Appeals of Georgia.

March Term, 1914.

(Syllabus by the Court.)

1. Trial (§ 233*)—Death or Railroad Employe—Instructions—Statement op Contentions.

The trial judge did not err in stating the contentions of the defendant.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 527-530; Dec. Dig. § 233.*]

2. Courts (§ 511*)—Evidence (§ 80*)—Presumption as to Common Law—Comity— Laws of Another State.

The courts of this state will, by comity, enforce rights asserted under the laws of a sister state, where such laws are not in conflict with the public policy of this state. The presumption that the common law is of force in a sister state (which prevails of necessity in the absence of knowledge of the foreign law) is not to be indulged when the court can easily inform itself that the contrary is true.

[Ed. Note.—For other cases, see Courts, Cent. Dig. § 1432; Dec. Dig. §511;* Evidence, Cent. Dig. S 101; Dec. Dig. f 80.*]

3. Courts (§ 511*)—Evidence (§ 80*)—Comity —What Law Governs.

It is the duty of a court, when the application of the law of a sister state is invoked, and when accurate knowledge of the foreign law can, in any proper manner, be acquired, to inform itself as to the law involved.

(a) Where an action is based upon the law of another state, the rights of the parties will be determined by the lex loci, and the remedy or mode of procedure will be applied in accordance with the lex fori.

[Ed. Note.—For other cases, see Courts, Cent. Dig. S 1432; Dec. Dig. § 511;* Evidence, Cent. Dig. § 101; Dec. Dig. § 80.*]

4. Master and Servant (§ 180*)—Railroad Employe—Rights—Fellow Servant.

Under the Constitution of South Carolina, an employe of a railroad company has the same rights and remedies for an injury, due to the negligence of a superior who controls and directs his actions, as if he were not an employe, and a conductor is not a fellow servant with a fireman who is a member of his train crew, and subject to his orders.

[Ed. Note.—For other cases, see Master and Sen-ant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.*]

5. Master and Servant (§§ 101, 102, 113*)— Safe Place to Work—Negligence—Railroad Employe.

A master's duty of furnishing his servant a safe place in which to work is a continuing one. The master owes the duty of providing a reasonably safe place, and of maintaining it in a reasonably safe condition during the employment, and the duty of a railroad company to see that objects, whether movable or stationary, are not left so near to its tracks as to injure an employe is included in the general duty of providing and maintaining a safe place to work. It is negligence to place a car on a track in dangerous proximity to another track.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192, 213, 224-227; Dec. Dig. §§ 101, 102, 113.*]

6. Master and Servant (§ 201*)—Injury to Servant—Negligence—Fellow Servant.

In order to relieve a master from liability for an injury to one of his servants, the negligence of a fellow servant must have been the sole cause of the injury, unmixed with any negligence on the part of the master or his representative.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.*]

7. Death (§ 104*)—Personal Injuries—Damages Recoverable.

Under the laws of South Carolina, "whatever damages the jury may think are compensation to the parties for whose benefit the action is brought for the injury, whether arising from pecuniary loss or otherwise sustained by the parties, by reason of the death of their relative, " are recoverable. As the jury in this case had the right to award such damages as they thought proportionate to the injury, resulting from the death of the plaintiff's husband, which might include injury over and above any legal claims, the defendant was not hurt by the instruction upon the subject of the earning capacity of the deceased and his expectancy; this being merely one item of damage that might be considered by the jury.

[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*]

8. Abatement and Revival (§ 13*)—Pendency of Suit in Another State—Actions by Administrator.

The rule that the pendency of a prior suit in another state will not abate a suit between the same parties for the same cause of action applies where such suit is in the name of the administrator of the same decedent, and against the same defendant, although the administrators in the two states are different persons; but a valid judgment in either state will afford protection against the enforcement of the claim in the other.

[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 92-98, 100; Dec. Dig. § 13.*]

9. Master and Servant (§ 278*)—Death of Fireman—Sufficiency of Evidence.

The evidence and the law authorized the verdict.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by Mrs. Eula Diseker, as administratrix of William H. Diseker, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error, and plaintiff files cross-bill of excep-tions. Affirmed on main bill, and cross-bill dismissed.

Jos. B. & Bryan Cumming, of Augusta, for plaintiff in error.

Austin Branch and A. L. Franklin, both of Augusta, for defendant in error.

RUSSELL, J. Mrs. Eula Diseker, as administratrix of William H. Diseker, deceased, brought an action for damages in the city court of Richmond county against the Southern Railway Company. The jury trying the case rendered a verdict for $7,000 in her favor. The defendant moved for a new trial, and excepts to the judgment overruling that motion. Exception was taken pendente lite to the judgment striking the thirteenth paragraph of the defendant's answer.

The petition alleges that it is brought pursuant to sections 2851, 2852, of the Civil Code of South Carolina 1902, which read as follows: "Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony." "Every such action shall be for the benefit of the wife or husband and child, or children, of the person whose death shall have been so caused; and if there be no such wife, or husband, or child, or children, then for the benefit of the parent, or parents; and if there be none such, then for the benefit of the heirs at law or the distributees of the person whose death shall have been caused as may be dependent on him for support, and shall be brought by or in the name of the executor or administrator of such person; and in every such action the jury may give such damages, including exemplary damages where such wrongful act, neglect or default was the result of recklessness, willfulness or malice, as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought. And the amount so recovered shall be divided between the before-mentioned parties, in such shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his or her estate."

It is alleged that the plaintiff is the wife and pessonal representative of William H. Diseker, and that he had, when he was killed, and now has, two minor children. Trudell Diseker, three years old, and Genesta Diseker, one year old, that he died intestate, und that the action is brought for the bene fit of his wife and said childreu. It is alleged that the defendant owns and operates a line of railway from Augusta, Ga., to Charleston, S. C, and has an agent and agency in Augusta, Ga., and owns and operates a railroad yard, track, cars, and engines in Charleston, S. C. In the tenth paragraph of the petition it is alleged that Diseker was employed by the defendant as a fireman on a switch engine in the defendant's yard in Charleston, S. C, and was working in that capacity on the 6th of September, 1900, when he was killed by the defendant The eleventh paragraph alleges that it was the duty of William H. Diseker, as a fireman on a switch engine, to look out for signals from the train hands employed by the defendant. Paragraph 12 avers that on the 6th of September, 1906, in the defendant's yard, and on its switch engine, Diseker was looking out of the engine cab for signals, when a box car, left by the defendant on an adjoining track, struck him on the head and killed him. In the thirteenth, fourteenth, fifteenth, and sixteenth paragraphs it is alleged: (13) That the box ear which struck and killed the said William H. Diseker was not pushed beyond the clear post by defendant and its agents; (14) that said box car was within a half foot of the window out of which said Diseker was looking for signals; (15) that the defendant was negligent in not removing beyond the clear post the said box car; (16) that defendant was negligent in leaving said box car within a half foot of the window of the cab out of which said Diseker was looking when he was killed. The petition further alleges that Diseker was 30 years of age, and making $60 a month, when he was killed, and was free from fault at the time of the killing, and that the administratrix, wife, and children have been damaged, by the death of Diseker, and by the negligence of the defendant, in the sum of $15,-000.

The...