Southern Ry. Co. v. Rowe

• Citation: 59 S.E. 462,2 Ga.App. 557
• Decision Date: 09 May 1907
• Docket Number: 93.
• Parties: SOUTHERN RY. CO. v. ROWE.
• Court: United States Court of Appeals (Georgia)

59 S.E. 462

2 Ga.App. 557

SOUTHERN RY. CO. v. ROWE.

No. 93.

Court of Appeals of Georgia

May 9, 1907

Syllabus by the Court.

Though the plaintiff in a suit which had been properly removed from the state to the federal court having concurrent jurisdiction of the cause of action in which suit was founded voluntarily dismissed his case in the United States court, it was nevertheless his right to bring another suit on the same cause of action in the state court at any time within the statute of limitations applicable to such action. This is true notwithstanding the damages in the second suit were laid in an amount which would prevent another removal to the federal court.

A cause of action dismissed in the United States court may be renewed in the state court without payment of the costs accrued in the federal court. Civ. Code, 1895, § 5043, imposing a penalty upon those who nonsuit or dismiss their cases, is not applicable to cases in the United States court. The words "the plaintiff may recommence his suit," refer to a suit between the identical parties that were involved in a former controversy in a court of the state of Georgia.

[Ed Note.-For cases in point, see Cent. Dig. vol. 13, Costs, § 1048.]

Where with apparent full knowledge of the existence of a ditch in a public road, and without any emergency requiring it to be crossed, one endeavors to pass such an excavation, he will be treated as having voluntarily assumed all the usual risks incident to the attempt.

[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 86.]

Where it is clear from the allegations of the petition that the plaintiff's injuries might have been avoided by the exercise of ordinary care on his part, a proper demurrer to the petition should not be overruled.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 84.]

Misfeasance is the improper doing of an act which the agent might lawfully do. Where an agent fails to use reasonable care or diligence in the performance of a duty, he will be personally responsible to a third person who is injured. His liability on such cases is put upon the ground that he is a wrongdoer, and, as such, responsible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 606, 607.

For other definitions, see Words and Phrases, vol. 5, p. 4535.]

The railway company and its section boss may be jointly sued for damages resulting from the negligent and improper discharge of his duties by such boss. The boss as a wrongdoer is personally responsible to the party injured by his misfeasance resulting from failure to use reasonable care and diligence in the performance of his duty, and the company is responsible for the misfeasance of its agent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1238.]

The section boss and a railway company can be jointly sued when the sole ground of the liability of the railroad company is the act of the section boss alone.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1238.]

Error from City Court of Hall County; G. H. Prior, Judge.

Action by J. E. Rowe against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Jno. J. Strickland and Ed Quillian, for plaintiff in error.

R. R. Arnold and F. M. Johnson, for defendant in error.

RUSSELL J.

The defendant in error brought an action against the Southern Railway Company in the city court of Hall county for the recovery of $10,000 damages, returnable to the February term, 1906, of that court. This action upon petition was removed to the Circuit Court of the United States upon the ground that the defendant was a nonresident, and that the sum in controversy exceeded $2,000. The order of removal was granted by the judge of the city court of Hall county February 2, 1906. The case was duly transmitted to the Circuit Court of the United States for the Northern District of Georgia, and on the 3d of March, 1906, the case was stricken from the docket of that court upon the ground that there had been no proper service upon the defendant. The dismissal was ordered by his honor, Judge Newman, "without prejudice to the plaintiff to bring the case over again." The action for $10,000 damages thus concluded was against the Southern Railway Company alone. On the 12th of March, 1906, the defendant in error brought an action in the city court of Hall county against the Southern Railway Company and one A. C. Collier, a section boss of the defendant company, alleging that the defendants had endamaged him in the sum of $10,000.

The allegations of the petition, so far as pertinent to the negligence and misfeasance of the defendants, are as follows:

"(4) The defendant Collier is in the employment of the defendant the Southern Railway Company as its section boss, and the injury hereinafter described occurred on account of the joint negligence of the defendants; the negligence being that of the defendant Collier in the capacity of section boss, and the railway company in negligently cutting the ditch, as hereinafter described.

"(5) At said Green's crossing the defendant had caused to be dug a deep ditch right across the public road and over a part of said crossing after it left the railroad tracks, and on the defendant railway company's right of way, and upon the approach to said crossing."

"(7) The cutting of said ditch across said public road was done by and under the superintendence of the defendant Collier, acting on behalf of said Southern Railway Company, and the said ditch was about eight inches deep, and extended all the way across the road and formed a dangerous obstruction to travel, and was negligence.

"(8) After cutting said ditch the said defendant Collier, acting as the agent of the defendant railway company, together with the section forces under him, negligently left the same open, and negligently failed to cover the same in any way with plank or other covering so that travelers upon the highway with vehicles could pass. Said ditch was in the middle of the road, and formed a dangerous obstruction to travel."

"(10) The defendants were negligent in all the particulars aforesaid. Said ditch was cut upon the approach to the crossing, and was intended to run the water away from the track and roadbed of the defendant railway company. The cutting of said ditch was part of the railroad work for which said section boss was employed, and was part of the defendant railway company's road work to keep its roadbed free from water and dampness, and to prevent the water from ponding. But the said section foreman was negligent in that he cut said ditch too deep, and in that he failed to cover the same and failed to protect it and left it open as a menace to travelers.

"(11) It is further shown that as to travelers upon said road the same was the only way provided for travel, and there was no way around said ditch."

The connection of the plaintiff, his actings and doings at the time of the alleged injury, is stated in paragraph 9 of his petition, which is as follows: "On the 19th day of September, 1905, and about 2 o'clock in the afternoon, plaintiff was driving his wagon along said public road, and, when the same got upon said crossing and road and reached the ditch, the effect of said wagon striking into said ditch, which was deep and abrupt, was to cause the pole of the wagon to break, and as it broke the wagon was partly wrecked, and plaintiff was thrown to the ground and caught in parts of the wagon, and the break caught his leg, and he was thrown to the ground, his leg broken, and he was greatly and permanently injured."

At the appearance term the defendants demurred to the petition and also filed a plea in abatement. The demurrer is as follows: "(1) There is no cause of action set out in plaintiff's petition. (2) Plaintiff shows by the allegations in its petition that, if there was any negligence on the part of the defendants, it was known to the plaintiff, and he could have avoided the same by the exercise of ordinary care. (3) By its petition plaintiff shows that the alleged ditch which he says was negligently cut was in full view and the existence, condition, and depth known to him, and that he took the risk when he drove over it, and cannot recover. (4) From plaintiff's petition it is apparent that plaintiff's injury was the result of an accident from causes unknown and from no negligence on the part of the defendants. (5) Plaintiff does not allege any act against these defendants which was joint. He alleges no act against the defendant Collier, except an act of mere negligence, and no act against the defendant the Southern Railway Company, except its own responsibility for the negligence of its employé, and alleges no overt act of misfeasance against either, and for that reason the joint action will not lie." This demurrer was overruled. The defendant's plea in bar was by consent, submitted to the presiding judge, who refused to sustain the same, holding that it was unnecessary that the costs due in the United States Circuit Court for the Northern District of Georgia in the former suit, which was dismissed, should be paid before the institution of the pending suit. Exception is taken to the order overruling the demurrer and to the refusal of the court to sustain the plea in abatement. We shall first consider the questions presented by the exception to the judgment on the plea in bar.

1. In this case the plaintiff, J. E. Rowe, brought his suit each time for $10,000, so that evidently it was not his purpose to lay his damages in such an amount as would prevent removal to the federal court. But the joinder of Collier, the section boss, a citizen of Georgia, under...