The Cent. R.R. v. Harmon

• Decision Date: 30 September 1882
• Citation: 69 Ga. 200
• Court: Georgia Supreme Court
• Parties: The Central Railroad. vs. Gleason & Harmon.

69 Ga. 200

The Central Railroad. vs. Gleason & Harmon.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Railroads. Damages. Negligence. Actions. Charge of Court. Evidence. Savannah. Before Judge harden. City Court of Savannah. February Term, 1882.

Reported in the decision.

H. C. Cunningham: A. R. Lawton, Jr., for plaintiffin error.

Charlton & Mackall; N. C Collier, for defendants.

Crawford, Justice.

This suit was brought to recover damages for the loss of a mule killed in the cotton yard of the C antral Rail-road and Banking Company, through the alleged negligence of said company. On the trial the jury returned a verdict for the plaintiff for the sum of one hundred and sixty dollars. A motion was made for a new trial on the several grounds set out therein, which was refused by the court, and the defendant excepted.

The damage sustained by the plaintiff below, as stated, occurred in the cotton yard of the Central Railroad Company in the city of Savannah. Drays are used to remove the cotton from this yard, and that they may move about in the same easily, it is covered with planking. There are five tracks running through it, and are known as A, B, C, D, and E, and all of which except E. are covered. On the day the injury complained of occurred, plaintiff's driver loaded his dray immediately north of D track, where there is usually an open passage-way out, but on account of other drays blocking this way, he drove across D, and the two right wheels of his dray went off the planking just by E track. That the wheels might rise again upon the planking, he whipped the mules to make them pull; it was just after a rain; the planks were wet and slippery, and one of the mules clipped and fell, catching one of his feet in the open space between the iron rail of the track and the planking which seems to have been left for the flange of the car wheels. In the effort to extricate the foot caught, he unfortunately got in another, and whilst aid was being rendered to 'relieve him, he broke it, and soon afterwards died.

The testimony further shows that the-art unplanked is not intended for the passage of drays, hat the planking is not as close to the rails at the point where the injury occurred as at others; that by re risen the dampness there, repairing has to be done oftener, and that the plank was much worn, though it appeared to be new. The foregoing constitute the materiel facts: known by the proof.

(1.) The first ground of the motion for a new trial was because the court refused to charge as requested by thedefendant: " If you find that the plaintiffs and defendant were both at fault in this case, however negligent the defendant may have been, yet if the negligence of the plaintiffs or their agents contributed to the injury, they are without remedy, and you must find for the defendant."

(2.) The second was because the court erred in charging the jury: "If you find that both the plaintiffs and defendant are at fault, then you are to consider the circumstances of the case, and apportion the loss between them, according to the amount of negligence attributable to each, and in proportion thereto. The rule of the common law was that if the negligence of the plaintiff contributed to the injury, then he could not recover. But our Code has changed this, and lays it down that although the plaintiff's negligence may have contributed to the injury, yet if the defendant was also negligent, the plaintiff can recover damages in proportion to the amount of 'the blame attributable to the defendant."

1. The real question made by the charge given, and the charge refused is, whether sections 3033, 3034 and 3036 of the Code cover such a case of injury as that disclosed by this record. Though these clauses have been repeatedly under the consideration of this court, they have never been construed, so far as we can find, except in connection with injuries caused by the running of the trains, or for damage actually committed by one then in the employment and service of the road. The case of Thompson vs. The Central Railroad and Banking Company, 54 Ga., 509, rules that a railroad company is liable for injuries done by the negligence or misconduct of other employes of the company, whether such injuries are connected with the running of the trains or otherwise. The person, however, who was injured in that case was a switchman and servant of the road; those whose carelessness injured him were also laborers engaged in carrying iron from one point to another in the yard of the defendant at the time of the injury. So that it is different in its facts from the onebefore us, in that the damage was done by the employes themselves, and by the...