Southern Ry. Co v. Davenport, (No. 19443.)
| Decision Date | 10 April 1929 |
| Docket Number | (No. 19443.) |
| Citation | 148 S.E. 171,39 Ga.App. 645 |
| Parties | SOUTHERN RY. CO. v. DAVENPORT. |
| Court | Georgia Court of Appeals |
Rehearing Denied May 15, 1929.
(Syllabus by Editorial Staff.)
Error from Superior Court, Whitfield County; C. C. Pittman, Judge.
Action by Homer Davenport against the Southern Railway Company and another. Judgment for plaintiff against the named defendant, said defendant's motion for new trial was overruled, and it brings error. Reversed.
W. M. Sapp and Maddox, Maddox & Mitchell, all of Dalton, for plaintiff in error.
D. W. Mitchell and W. E. & W. G. Mann, all of Dalton, for defendant in error.
Syllabus Opinion by the Court.
BROYLES, C. J. [1] 1. A railway company and its engineer may be jointly sued for the negligent infliction of personal injuries, where the negligence of the company results solely from the act and conduct of the engineer. Southern R. Co. v. Grizzle, 124 Ga. 735 (2), 53 S. E. 244, 110 Am. St. Rep. 191.
2. In a joint action against a railway company and its engineer, to recover damages for the infliction of personal injuries upon the plaintiff solely in consequence of the engineer's negligence, a verdict finding the engineer not liable, but finding in favor of the plaintiff against the railway company, is unauthorized and should be set aside. Southern R. Co. v. Harbin, 135 Ga. 122, 68 S. E. 1103, 30 L. R. A. (N. S.) 404, 21 Ann. Cas. 1011; Salmon v. Southern R. Co., 137 Ga. 636 (1), 73 S. E. 1062.
3. The instant case is a joint action against the railway company and its engineer for the negligent infliction of personal injuries upon the plaintiff. The petition, properly contrued, most strongly against the plaintiff, shows that the injuries sued for were caused solely by the negligence of the engineer. Furthermore, upon the trial of the case there was no evidence that authorized a finding that any other employee or agent of the railway company was guilty of any negligence that contributed to the plaintiff's injuries. Accordingly, under the above-stated ruling, the verdict which exonerated the engineer and held the railway company liable, was unauthorized, and the court erred in refusing to grant a new trial.
Judgment reversed.
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