Stewart v. Seabd. Air Line Ry.

• Decision Date: 06 June 1902
• Citation: 115 Ga. 624,41 S.E. 981
• Parties: STEWART v. SEABOARD AIR LINE RAILWAY.
• Court: Georgia Supreme Court

41 S.E. 981

115 Ga. 624

STEWART

v.SEABOARD AIR LINE RAILWAY.

Supreme Court of Georgia.

June 6, 1902.

INJURY TO EMPLOYE—DEFECTIVE APPLIANCES—ACCIDENT.

1. Even if the defendant was negligent in furnishing to the plaintiff an improper appliance, the plaintiff had equal opportunity with the defendant of discovering the defect in the appliance furnished, and the defendant was therefore not liable for an injury resulting from this defect.

2. Considering the evidence as a whole, it appears that the injury to the plaintiff was not occasioned by negligence on the part of either the defendant or the plaintiff, but that it was the result of an accident.

3. Whether the case be considered in the light of the evidence introduced, or in the light of the evidence admitted as well as that which was rejected, the railway company was not liable to the plaintiff, and the court did not err in granting a nonsuit.

(Syllabus by the Court.)

Error from city court of Americus; Allen Fort, Judge pro hac.

Action by H. Z. Stewart against the Seaboard Air Line Railway. Judgment for defendant, and plaintiff brings error. Affirmed.

W. P. Wallis. for plaintiff in error.

E. A. Hawkins, for defendant in error.

COBB, J. Stewart sued the railway company for damages. At the trial the court granted a nonsuit, and to this judgment the plaintiff excepted. It appeared from the evidence that the plaintiff was a mechanic employed by and at work in the shops of the railway company. On a hill near the shops, timber to be used in the shops was stored by the defendant; and, to convey this timber from the place where it was stored to the shops, a hand or push car was used, which was propelled along a track running from the place where the timber was located down an incline to the shops. This push car consisted of trucks, and an open frame above the same; there being no floor on the car. The timber was placed upon this frame, and the speed of the car in going down the incline was regulated by brakes, which were controlled by a lever on the side of the car. The plaintiff was directed to take the car, go up the hill, and bring to the shops a heavy piece of timber. In obedience to this direction he repaired with the car to the top of the hill, and, with another employe, placed the piece of timber upon the car, seated himself on the end of the timber, which was at a point on the car near the lever, and placed his foot between the end of the timber and one of the crossbeams of the car. The other employe placed himself upon the timber behind the plaintiff. While the plaintiff was in this position, the car was started down the hill, and, when it had attained a speed which was considered by the plaintiff to be as high as was safe, the lever was used by him to control the speed of the car and prevent it from being increased. It was then found that the brakes would not control the car. The speed increased, and the car was propelled, by running at a high rate of speed, against some trucks which were on the track, and plaintiff's leg was broken by being crushed between the end of the timber and the crossbeam of the car. The plaintiff did all he could to stop the car, and the brakes would not hold the wheels. Plaintiff had been working for the railway company for more than a year, and had used this car frequently; sometimes using it every day, and then not using it for a week at a time. The plaintiff testified that there was nothing the matter with the car, other than the brake, that he knew of; that, so far as he knew, the car was in good condition, and equipped with the proper machinery. The brake appliances would not stop the car on the occasion that he was hurt. That was all he knew. They had held the car before when he operated it, and had not failed to hold prior to that occasion. He had not used the car on the day on which he was hurt, previous to the time he was hurt. He had used it the week previous, but did not remember the day. He had opportunities to see it frequently. He used it, you might say, daily, and sometimes more than once a day. He never noticed anything wrong with the brake before that day, and did not notice anything wrong with it before the accident that day. If there was anything wrong, he never knew it. The car had been operated by him without any trouble before, and its movements were controlled by the same brake all the time up to that time. He had the brakes on when he first started down, and when he got to the crest of the hill he lost control of the movements of the car. There was testimony from an employe of the railway company that after the accident he examined the car, and found that some of thenuts needed tightening up, which was done, and that it was necessary to take up "some slack in the brake. The slack was in the rod that goes from the brake beam to the lever." This witness also testified that, "if the rod was slack, you would have to pull the lever a little farther than if it was tight, and, if the iron rods were slack, you might pull the lever clean back, and it would not give power enough to stop the wheel"; that when he worked on the brake, which was two days after the accident, there was nothing the matter with the car, except the slack above referred to; and that the effect of this slack would be that the lever would have...