Stirk v. Central R. & Banking Co.

• Decision Date: 30 January 1888
• Citation: 5 S.E. 105,79 Ga. 495
• Parties: STIRK v. CENTRAL RAILROAD & BANKING Co.
• Court: Georgia Supreme Court

5 S.E. 105

79 Ga. 495

STIRK v. CENTRAL RAILROAD & BANKING Co.

Supreme Court of Georgia

January 30, 1888

Error from superior court, Bibb county; JOHN T. CLARKE, Judge.

Hill & Harris, for plaintiff in error.

R. F Lyon, for defendant in error.

BLANDFORD, J.

Martha Stirk brought her action against the Central Railroad & Banking Company to recover damages for the homicide of her husband. After she had submitted her evidence the court granted a nonsuit, and to this she excepted. The evidence submitted in behalf of the plaintiff in the court below was in substance as follows: Stirk was an employe of the Central Railroad, and was a train-hand. At Smithville, while the cars were en route, a car belonging to the Green Line Company was introduced into the train. It was a different kind of car from those ordinarily used by the Central Railroad, and was higher. As the train was approaching Cuthbert the conductor's line, which reached from the cab to the engine, became entangled, and Stirk was ordered to go forward and release it. He went forward as directed, and while on top of the Green Line car the car passed under a bridge, and he was knocked off by the bridge and killed.

Two questions are made by the evidence. The first is, was the company negligent in introducing into its train a car higher than the ordinary cars of the company? If its ordinary cars were ones upon the top of which the employes could stand without danger in passing under this railroad bridge, and if the company introduced into its train a car higher than its ordinary cars, and gave no warning to its employes of the condition of such car, then the jury might infer that the company was negligent therein, because of the increased hazard and danger to its employes. Another question is whether or not the deceased could have avoided the consequences of the defendant's negligence, if there was any, by the use of ordinary dilligence. These were questions for the jury. The evidence showed that at the time this man was killed several persons attached to the train were looking in his direction, and seemed to apprehend no danger to him because they gave him no notice or warning; and it is not probable that he himself anticipated the danger. He had been accustomed to pass under the bridge daily, and knew its height.

Another exception relates to the admission of certain testimony of one Booth. Booth testified that one Jones had pointed out the car upon which Stirk was standing when he was struck by the bridge, and that he (Booth) had...