Southern Ry. Co. v. Morrison

• Decision Date: 13 October 1898
• Citation: 31 S.E. 564,105 Ga. 543
• Parties: SOUTHERN RY. CO. v. MORRISON.
• Court: Georgia Supreme Court

31 S.E. 564

105 Ga. 543

SOUTHERN RY. CO. v. MORRISON.

Supreme Court of Georgia

October 13, 1898

Syllabus by the Court.

1. A railway company is not liable for personal injuries received by an employé of one of its patrons in moving a loaded freight car which had been delivered and left safely standing on a side track for the purpose of being unloaded, even though such injuries may have been occasioned because of a defect in a brake attached to the car, and the company was chargeable with notice of its condition, if the person was injured in consequence of his having voluntarily placed himself in a perilous situation, and failed to exercise ordinary care and diligence as to the matter of his own safety.

2. Whether the agent of the railroad company did or did not consent that the consignee should move the loaded car from the place of delivery to a point on the track more convenient for the consignee, if in so moving the car it conclusively appears that the person injured stood on the bumper of the car, with one foot against the lumber with which it was loaded, and in this position attempted to control the movements of the car by the use of the brake while passing down a grade, and if it be further shown that while in such position he fell and was run over by the car, such gross negligence and want of care will bar a recovery against the railroad company, whether the car was or was not moved with the assent of the railroad company.

Error from city court of Elberton; P. P. Proffitt, Judge.

Action by Nathan Morrison, by next friend, against the Southern Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Geo. C Grogan, A. G. McCurry, and Hamilton McWhorter, for plaintiff in error.

W. D Tutt, for defendant in error.

LITTLE J.

This was an action to recover damages for a tort alleged to have been committed by the plaintiff in error on the person of the defendant in error. In addition to the statement of the case given above, it is only necessary, for the consideration of the principles of law on which we think the decision of the case must rest, to refer to certain portions of the evidence contained in the record. A car load of lumber, consigned to Campbell, which was sold by the latter to the Elberton Planing Mill, was transported by the plaintiff in error, over its road, to Elberton, and placed on a side track leading to the planing mill; being coupled to two other cars. Campbell the consignee, hired the defendant in error and other laborers to unload the lumber from this car. When they were making preparations to unload the lumber, the person in charge of the planing mill objected to its being unloaded at the particular point where the car had been placed by the railroad company. Then, according to the witness King Morrison, "he went to see Mr. Campbell, who was down at the depot, on the platform," and told him of the objection raised to having the car unloaded at the place where it stood. This witness further stated that then the agent of the railroad told Mr. Campbell that the car would have to be unloaded, and, if not promptly unloaded, he would have to pay storage on it, and that "it would have to be unloaded, if it has to be moved." Campbell, the consignee, testified that the car could have been unloaded where it was. "*** When Morrison came down to tell me what Mr. Swearengin said about not mixing the lumber, Champion [the agent] asked me when I was going to get the car unloaded. *** I told him what Swearengin had said. He said: 'The lumber does not belong to Swearengin. It belongs to you. And I must get it unloaded, or you must pay storage.' He said that 'the car will have to be unloaded, if it has to be moved.' He did not, however, make any proposition to move it. I know that he needed the car. The freight train had left. I never knew of any cars being moved on that side track before by the consignee, with the knowledge and consent of the company. The lumber on the car was loaded high, and bulged forward some, and rested against the brake. I have known of consignees moving cars on that track, but never knew it done with the knowledge of the agent of the railroad. The grade at that point was rather steep, and a car could get away from you." The evidence further tended to show that the brake on this car was defective; that before being moved it was safely "chocked"; that the railroad company was in the habit of leaving cars on the side track, to be unloaded for the planing mill, and the consignees moved them whenever they wanted to do so. The witness testified that he did not know that any agent of the company knew of such moving, but was sure that some of the train hands did. The engineer who brought in the car testified that the car causing the injury was left on the side track at Elberton, near the planing mill, at a point designated by the foreman of the mill, "scotched up," and in an entirely safe condition. The defendant in error testified: That his leg was cut off by a car running over it while he was in the employ of Campbell, unloading lumber. "The lumber was loaded on a flat car, and Campbell told me to get up there and stop the car when it started off. The lumber was loaded so high that I could not stand on it. I put one foot on the bumper, and the other against the lumber, and got hold of the brake. *** I started to turn the brake, when it broke off. *** There was no other place on the car that I could have gotten on to operate the brake. I got on the loaded car, put one foot on the bumper and the other on the lumber, and undertook to regulate with the brake the speed of the car down grade. I did not know the use of the ratchet wheel. I did not know it was fixed to hold the brake when it was applied. *** I never worked on a railroad. As I started to turn the brake, it broke off. I fell off in front of the car, which ran over my leg."

The evidence is voluminous. There was no conflict as to the manner in which the injury was inflicted, and we have only referred to certain portions of the evidence in order to ascertain the relative rights of the parties. The theory of the plaintiff in the court below was that the railroad company was guilty of negligence in not having a proper and safe brake on the car. Assuming that the brake was defective was that fact, as to this plaintiff, negligence? The presumption of negligence against common carriers, where there is a loss of goods, arises by operation of law. Civ. Code, § 2264. And a railroad company is liable for any damages done to persons or property by the running of locomotives or cars, the presumption in all cases being against the company. Id. § 2321. But evidently the running of locomotives or cars referred to in the statute is confined to those cases where the company, by its...