The Cent. R.R. Co. v. Mitchell

• Decision Date: 30 September 1879
• Parties: The Central Railroad Company. v. Mitchell.
• Court: Georgia Supreme Court

63 Ga. 173

The Central Railroad Company. v. Mitchell.

Supreme Court of the State of Georgia

September Term, 1879.

[COPYRIGHT MATERIAL OMITTED]

Railroad. Jurors. Evidence. Practice in the Superior Court. Charge of Court. Damages. Negligence. Master and servant. New trial. Before Judge Simmons. Bibb Superior Court. April Adjourned Term, 1879.

Mitchell sued the Central Railroad for damages. It appeared that he was an engineer on defendant's road. That in a cut near the city of Macon, a large bank of dirt slid *from the side of the cut and covered the track; that plaintiff, with the train on which he ran, came upon this obstruction, and, being unable to stop in time, an accident occurred which very seriously injured him. The main question of fact in the case was, whether the cut was properly constructed and kept by defendant or not, and whether, therefore, the slide and the consequent accident was the result of negligence or of natural causes, over which defendant had no control. There was some conflicting evidence as to whether the road-master of defendant had notice that the embankment was likely to give trouble. A conductor testified to having called the attention of the road-master to the cut generally, though not to any particular point; he also stated that he did not apprehend any serious danger, and did not know certainly that the slide occurred at the point which had attracted his attention. The road-master denied any recollection of having had notice in regard thereto.

Another point of contest was as to the negligence or diligence of the plaintiff. Besides conflicting evidence on the subject of the speed at which he was running, etc., etc., the following occurs in his own testimony: "It is against the rules of the company to have anybody on the engine except the fireman and the wood-passer, unless one of them gets sick. It is against the rule to carry any one as a passenger on the engine. * * * There was still another man on the engine that night. It was Mr. Emerson. He got on at Bolingbroke to come to Macon to go out on his engine. I had no authority for that; there was room in the cars for him, and there was room on the engine with me." There was no evidence indicating that this violation of the rules affected the accident, or had any influence upon it.

The jury found for the plaintiff $6,000.00. Defendant moved for a new trial on the following, among other grounds:

(1.) Because the court erred in sustaining the challenge *of the plaintiff to the juror, Henry E. Gibson, one of the regularly drawn panel of twenty-four petit jurors, on the sole ground that said juror was an employee of the defendant, it not appearing in what capacity he was employed.

(2.) Because the court erred in permitting Mitchell, the plaintiff, to testify, over the objection of the defendant, as to the injuries he sustained in his kidneys, urinary organs, bloody urinal discharges, and to his nervous system, there being nothing in plaintiff's declaration to allow or justify such proof. [The declaration contains the following: "By the said violent overturning and wrecking of the said locomotive engine and the tender and cars attached thereto, your petitioner was, without fault, carelessness, negligence, or mismanagement by, or on the part, of your petitioner, but by the fault, negligence, carelessness and mismanagement of the said Railroad and Banking Company on the said 1st day of January, 1877, and in the said county of Bibb, in his body violently and grievously bruised, mangled and broken, to-wit: in and upon his head, arms, legs and body, and particularly as to the serious injury and wounding of his internal vital organs and as to the violent straining or breaking of the thigh-bone of his left leg, and the violent tearing asunder, breaking and dislocating the joints of the bones of the knee of his left leg, and the violent tearing, mangling and breaking of the tendons, ligaments, sinews, and muscles, binding the same, whereby, etc."]

(3.) Because the court erred in allowing the testimony of the witness, Wheeler, and all others on that point, to go to the jury and remain there as evidence, over the objection of defendant, as to what the books put down as the most valuable class of earth for embankments, or cuts, as to the character of slopes, of banks, etc., what the authorities give as the rule for construction of walls of cuts, and all the testimony of that character, on the ground that it was not original, but hearsay evidence.

[The witness testified that he was a civil engineer, had *surveyed railroads, including this particular road at the place of the accident. He gave a considerable amount ofevidence as to the depth, width, etc., of the cut. Among other things, he testified as follows: "The character of the soil in the ditch is mostly sand; above the ditch it is a mixture of clay and sand—mostly clay. The effect of water running on a sandy cut is to wash it off if there is force enough in the current to move the particles of sand. According to the rules of civil engineering, clay is put down as having the most adhesiveness for making cuts and embankments, or some kinds of clay and sand mixed. According to the rules given in road-building and cutting away embankments, the steepest slope that I know any authority for is half a foot horizontal to one foot perpendicular, or 3/4 to one. If that cut was twenty-nine feet deep, it ought to have a slope of nearly fifteen feet. Where the soil is unfavorable, clay-soil underlaid with loose, sandy soil, there are various means adopted to support the walls. Sometimes stone walls are used, and sometimes a greater slope is given. In extreme cases supports are used. When it will not support itself, we have to furnish support for it, where it is exposed to the action of water. I think in such a soil a slope of one foot to one foot would be sufficiently safe. * * *

"The rules for construction of cuts, etc., which I have given are found in books on engineering. I give these rules solely from what I recollect of the books. These rules are found in Mahan. Gillespie and Gilmore, and many others."]

(4.) Because the court erred in allowing counsel for plaintiff in the concluding argument, over the objection and protest of counsel for defendant, to comment on the evidence of Henry Burton, brought in by interrogatories by the plaintiff, and put in and used and relied on by the said plaintiff, substantially as follows: "We had to go into the camp of the enemy to get the evidence of this witness; *he is an employee of the defendant, all his sympathies are with the defendant, and against the plaintiff. The evidence had to be persuaded out of him, after he had been manipulated by the defendant's principal employees and counsel, and with all that, they had been able to drag out of him so much of the truth, that is that he had given notice to the railroad company of the dangerous character of the cut, that the company would have trouble there." Said counsel for the plaintiff, when interrupted by defendant's counsel with the objection that he had no right in this way to impeach the evidence of his witness, replied that it was not his purpose to impeach this witness, they relied on his evidence in the main.

(5.) Because the court erred in charging the jury at the request of plaintiff's counsel, "that the railroad company is under obligations to its employees upon the trains to observe all ordinary and reasonable precaution to keep its road in such a condition as to make the passage of such employees reasonably safe, and if the company by neglecting such ordinary and reasonable precautions, allows its road to be unsafe, and its employees are injured by such negligence, then the railroad is liable for the dam-age thus done if the employee injured was not himself at fault."

(6.) Because the court erred in charging the jury: "You may also inquire whether the plaintiff allowed unauthorized persons to ride on the engine with him. If you so find, then inquire further and ascertain whether those persons contributed to, or caused the injury. If they did, you would be authorized to find for the defendant. If they did not, then you would not be authorized to find for the defendant on that ground. The fault or negligence of the defendant must contribute to or cause the injury. If, therefore, you find from the evidence that anything he did on that occasion, or anything he omitted to do, contributed to or caused the injury, then you would be authorized to find him not free from fault, and your verdict should be for thedefendant. If, on the other hand, you should believe from *the evidence that nothing he did, or omitted to do on that occasion, contributed to, or caused the injury, that he did all that a prudent and skillful engineer could do to avoid the injury, then you would be authorized to find him free from fault."

(7.) Because the court charged that for damages resulting from defects, of which the company had notice, it would be liable.

(8.) Because the verdict was contrary to law and the evidence.

The motion was overruled, and defendant excepted.

A. R. Lawton; Lyon & Gresham, for plaintiff in error.

Bacon & Rutherford; C. J. Harris, for defendant.

Jackson, Justice.

The defendant in error sued the plaintiff in error for very serious and life-long injuries to his person—so serious as wholly to unfit him for his regular business, and to disable him for all active work. The jury found six thousand dollars for the damage done him, and the defendant, the plaintiff in error here, being denied a new trial, excepted. The defendant in error was an engineer on the road, and ran the train on the occasion of the calamity, and the case involves the important question of what character of fault on his part will prevent a verdict for him, and this is the main question in the case, upon which the chief justice differs and dissents from a majority of the court. Before considering it. however, it will be necessary briefly to...