The Atlanta v. Ayers

• Decision Date: 31 July 1874
• Citation: 53 Ga. 12
• Parties: The Atlanta and Richmond Air Line Railway Company,plaintiff in error. v. Jane M. Ayers, defendant in error
• Court: Georgia Supreme Court

53 Ga. 12

The Atlanta and Richmond Air Line Railway Company, plaintiff in error. v. Jane M. Ayers, defendant in error

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Railroads. Master and servant. Husband and wife. Damages. Charge of Court. Before Judge Rice. Hall Superior Court. March Term, 1874.

Jane M. Ayers brought case against the Atlanta and Richmond Air Line Railway Company for $10,000 00 damages, alleged to have been sustained by her by reason of the killing of her husband through the culpable negligence of the defendant. The general issue was pleaded.

The evidence made, in brief, the following case: On or about May 24th, 1871, Alvin D. Ayers, the husband of the plaintiff, was in the employ of the defendant as a track-raiser, for which services he received from $1 00 to $1 25 per day. The hands with whom he worked were stationed at Flowery Branch, a depot on defendant's road. On the day on which Ayers was killed, he, together with the other hands, had been at work about four miles from the above mentioned depot. At sunset, the gravel or construction train, stopped at this point for the hands to get on to be carried back to the aforesaid depot, as it was too far for them to walk before dark. When this train approached Flowery Branch, the signal "on brakes" was given and the speed slackened. All of the hands jumped off except Ayers. Some one cried out allright, and the signal of "off brakes" was sounded. The deceased was then suspended between two cars, about to jump off, with his hands resting upon their ends. As the train started forward, the interval between the two cars was extended, causing him to fall upon the track, where he was cut to pieces by the wheels. He left a widow and two children, one a boy eight years old, the other a girl, about six. He left noproperty, except personalty of the value of $100 00. *His family was entirely dependent upon him for a support. He was about thirty-five years of age. The testimony is conflicting as to whether the train was completely stopped or not at Flowery Branch.

The evidence introduced was voluminous. It is omitted, as the above statement will render clear the errors assigned upon the charge of the court.

The jury returned a verdict for the plaintiff for $3,000 00. The defendant moved for a new trial upon the following grounds, to-wit:

1st. Because the verdict was contrary to the evidence and the charge of the court.

2d. Because the court erred in charging the jury as follows: "In this case, if the jury find, from the evidence, that the railroad train on which Alvin D. Ayers was a passenger, was stopped in order that he and the other passengers might get off, yet, if the railroad train was started on before he had time to get off, and he was placed under the necessity of attempting to get off while the train was in motion, rather than be carried away from the place where he was to be put off, and in attempting to get off, while the cars were thus in motion, he was injured or killed, then the defendant would be liable in consequence of a want of proper and reasonable care and diligence with respect to Alvin D. Ayers."

3d. Because the court erred in this, that when requested to charge in reference to the contributory negligence of the deceased, the presiding judge said, in the hearing of the jury, "it did not apply to this case."

To the motion the judge attached the following notes:

The second ground omits a material portion of the charge which is necessary to an understanding of that portion which is set out. It was as follows: "It is not only the duty of a conductor or manager of a railroad train to stop, that its passengers may get off, but it is his duty to stop long enough for its passengers to get off and to see that they are off before he moves forward on the road." Then follows the portion of the charge set outin the motion.

*The words excepted to in the third ground were only the reply of the court to a verbal request of counsel to charge as indicated, and which request was made after the court had concluded its instructions; which, in its opinion, covered all the principles involved in the case.

The motion was overruled, and defendant excepted.

J. N. Dorsey; J. B. Estes; J. F. Langston; E. M. Johnson, for plaintiff in error.

J. N. Geenn; Peeples & Howele; S. C. Dunlap, for defendant.

Trippe, Judge.

1. The old rule that the employer is not responsible to an employee for damages which the latter has sustained, on account of the negligence of a fellow-servant, has been abolished in this state. Section 2083 of the Code puts employees on the footing of passengers. A passenger may recover when he may be at fault, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him: Section 3034. Then comes the provision in section 3036, which has been construed in 35 Georgia, 105, to mean that if the employee is guilty of fault or negligence, he cannot recover at all. Even...