The Cent. R.R. v. Kenney

• Decision Date: 31 January 1877
• Citation: 58 Ga. 486
• Parties: The Central Railroad and Banking Company, plaintiff in err0r. v. Francis M. Kenney, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 486

The Central Railroad and Banking Company, plaintiff in err0r. v. Francis M. Kenney, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Railroads. Master and Servant. Negligence. Before Judge Hall. Henry Superior Court. April Term, 1876.

Kenny brought case against the Central Railroad and Banking Company for $20,000.00 damages. His declaration alleged, substantially, as follows: On February 25th, 1875, plaintiff was inthe employ of the defendant in the capacity of overseer of the East Point section, number 12, Atlanta division of the defendant\'s road. In the discharge of his duties, and under the direction of the defendant, he was running on what is known as the supervisor\'s crank-car, over defendant\'s track, at Hampton. Without carelessness or negligence on his part, but owing to the defective and careless construction by defendant of the "frog" at that point, and owing also to the defective construction of the wheels of the said crank-car, the same not being securely and properly fastened at the axle, but loosely and carelessly attached, the said car ran off the track in passing over said "frog, " precipitated plaintiff on the track, ran against him, and broke his right leg, permanently injuring him, etc.

The defendant pleaded the general issue.

The evidence for the plaintiff presented, in substance, the *following facts: The plaintiff, under the direction of the supervisor, had been engaged in measuring wood and cross-ties along the line of the railroad. The supervisor had furnished to plaintiff his crank-car for use in discharging this duty. He met J. T. Dorsey, also a section-master, at Lovejoy's station, who stated to him that the supervisor directed that he (Dorsey) should accompany him over his (plaintiff's) section. Dorsey, two negroes and plaintiff then went on the same crank-car in the direction of Hampton. When two or three miles from the last-named station, plaintiff ordered the car to be stopped and taken off the track, in order to allow a train to pass. Plaintiff observed one of the hands working on the wheel of the car. He stopped him and examined it. He ascertained that the wheel was not properly put on. He and Dorsey put on the wheel and drove in the wedge. Plaintiff then considered it as safe as it ever was. After the train passed, the car was replaced on the track, and propelled towards Hampton. As they approached this station, they were going down grade at the rate of about six miles an hour. When they struck the "frag" at Hampton, the car was thrown from the track, and the plaintiff injured. The wheels of the car were fastened on with wedges. The flanges to the wheels were not more than one-half inch deep. Plaintiff's opinion was, that the accident was caused by the flanges of the wheels being too shallow. The speed at which the car was running was usual. Plaintiff was in no hurry. He had been employed on defendant's road as a section-master for about two years. Had been in the employ of the Southwestern Railroad Company in the same capacity for about the same time. He had thus been in the daily use of hand-cars. He had complete control of the car; he stopped it and put it on at his pleasure.

There was evidence to show the nature and extent of the plaintiff's damages, etc., all of which is omitted as immaterial here.

The defendant introduced evidence to show that the car, atthe time of the accident, was running at a greater speed *than six miles per hour, and that it was considered dangerous by experienced railroad men to go over a "frog" in a hand car, at a greater rate of speed than from two to three miles per hour.

The jury found for the plaintiff $3,500.00. The defendant moved for a new trial on the following grounds:

1st. Because the verdict was contrary to the following portion of the charge of the court: "If the plaintiff was at fault, or was negligent, then he cannot recover, although the car, or track, or both, were defective. If there was a defect in the wheel on the car, and plaintiff was apprised of it, it was his duty, if he had to use the car, to exercise care and caution in running the car; and, in order to determine whether he used care and caution, you will look to the evidence in the case. You will look to the distance he was required to travel on that day; the amount of work he was required to do; the extent of the defect in the wheel; the effort, if any, to repair the defect in the wheel; the character of the wheel after it was repaired—that is, whether it was safe or not to go on with it, in its condition; the speed he was running; the character of the track over which he was running; and to all the facts and circumstances of the case...