Southern Ry. Co. v. Nichols
| Decision Date | 10 August 1910 |
| Citation | 68 S.E. 789,135 Ga. 11 |
| Parties | SOUTHERN RY. CO. v. NICHOLS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In an action against a railroad company by an employé to recover damages for a personal injury, alleged to have been sustained by the employé while traveling as a passenger, where the railroad company pleads the employé's release upon a consideration of one dollar as accord and satisfaction, it is competent for the employé to amend his petition by alleging that the release was procured by fraud. An amendment which alleges that the employé was induced to sign the release upon the false representation of the agent that the company's surgeon pronounced his injury slight, and that he would be able to resume work in a few days, and upon the company's agent delivering to him at the time an order directing the employé's superior officer to restore him to his former situation, signing the superintendent's name, which order was issued without the superintendent's authority and repudiated by the company, and that as soon as he was refused employment he tendered the dollar to the agent who gave it to him, which tender was refused, is sufficient to raise the issue of fraud in the procurement of the release.
The amendment related to a single subject-matter, and was properly incorporated in a single paragraph.
Where in a joint action of negligence in the state court against three defendants a peremptory instruction is given on the trial in favor of the two defendants who are residents of the state, this does not entitle the other, although a citizen of another state, to remove the case to the United States court because of diverse citizenship.
Where the court, after reading from Civ. Code 1895, § 2322, that "if the complainant and the agents of the railroad 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," immediately added, "but in this connection I charge you that the plaintiff can in no event recover if he could by the exercise of ordinary care and diligence have prevented the injury," such instruction is not open to the criticism as authorizing a recovery, although the plaintiff's negligence may have been the preponderating cause of the injury.
Where it appeared that a passenger having plenty of time to get on a train while it was standing waited until it began to move and in an attempt to get on board by seizing the railing of the car his projecting body came in contact with a pair of trucks left near the track on the station premises, and thus he was injured, he cannot recover damages on the ground that the railroad company was negligent in allowing the trucks to be placed near the track.
Error from Superior Court, Whitfield County; A. W. Fite, Judge.
Action by J. E. Nichols against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.
McDaniel Alston & Black and Maddox, McCamy & Shumate, for plaintiff in error.
Geo. G Glenn and Westmoreland Bros., for defendant in error.
James E. Nichols brought suit against the Southern Railway Company R. C. Craig, its depot agent, and J. W. Walker, the agent of the Southern Express Company, to recover damages for personal injuries. He alleged that he was employed as an engineer on a freight train of the railway company; that he ran his train into Chattanooga, Tenn., where he boarded an outgoing passenger train for Atlanta, Ga.; that he had previously asked for and was expecting a telegraphic pass, authorizing him to be carried on the passenger train, and so informed the conductor; that the plaintiff inquired of the operator at Ooltewah, Tenn., at the office, and, the pass not being there, he reboarded the train and informed the conductor that he had not received the pass, but that be would get it when the train reached Dalton; that the conductor assented to this; that, when they reached Dalton, the plaintiff left the train, went into the office, and inquired about the pass, and, learning that it was not there, he determined to reboard the train and pay his fare; that, before he had time to get on, the train, without warning, started off, and he had to run to catch it; that he caught the train safely, and, while in the act of swinging himself on the steps and platform, his body came in contact with a pair of trucks which had been left so close to the coach as to strike him, knocking him off the steps before he swung his body clear; that but for the trucks striking him he would have boarded, as it was not moving so fast as to be dangerous to do so, he frequently having boarded trains safely going at a higher speed; that Craig, the depot agent, was negligent, in that it was his duty to see that the trucks were not left so near the side of the coach as to endanger passengers or others in attempting to board the car, and he failed to perform this duty; that the trucks belonged to the Southern Express Company, and had been placed so near the side of the coach as to endanger passengers or others attempting to board the train, and the express agent either placed the trucks there or allowed them to be so placed, which was negligence on his part; and that the conductor was negligent in starting the train without giving him time to get back from the office to board the same. The railroad company filed its plea, and at the trial amended it by setting up an accord and satisfaction, in that the plaintiff had been settled with, and in consideration of $1 had signed a release covering the injuries sued for, whereupon the plaintiff amended his declaration, attacking the plea of accord and satisfaction, and alleging that the release was procured by fraud. The defendants demurred to the amendment, and the demurrer was overruled. At the conclusion of the evidence, the court announced that he would instruct the jury that there could be no recovery against Craig and Walker, whereupon the railroad company filed its petition to remove the cause to the United States court. The petition was in the form prescribed by the act of Congress, and was accompanied with a bond. The court refused to grant the order of removal, and exception was taken. Pending the argument, the plaintiff again amended his declaration, alleging an additional act of negligence. A verdict was rendered for the plaintiff. The defendants moved for a new trial, which being refused, they excepted.
1, 2. The demurrer to the amendment attacking the release set up by the defendant as a plea of accord and satisfaction was upon the grounds that it was not set out in orderly paragraphs consecutively numbered; that the facts alleged were insufficient to constitute fraud; that it did not appear that the...
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