The Savannah v. Barber

• Decision Date: 30 September 1883
• Citation: 71 Ga. 644
• Parties: The Savannah, Florida and Western Railway. vs. Barber.
• Court: Georgia Supreme Court

71 Ga. 644

The Savannah, Florida and Western Railway. vs. Barber.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

New Trial. Charge of Court. Allegata and Probata. Master and Servant. Railroads. Damages. Negligence. Onus Probandi. Before Judge Adams. Chatham Superior Court. December Term, 1882.

Barber brought suit against the Savannah, Florida and Western Railway Company. His declaration alleged that he was a car coupler on that road; that a part of his duty was to "go between the moving cars or boxes attached to the engine, and stationary cars or boxes to be coupled, and to safely take up with his left hand the link used in coupling said cars and boxes, and cause said link to enter the bumper of the car or box to be attached, and to be fastened with the coupling pin to be used for said purpose; that said services of your petitioner in so coupling cars and boxes, in the employ of the aforesaid defendant, were of such a character, and were necessary to be performed by your petitioner in the manner aforesaid, and could not be performed, with any degree of safety by your petitioner, without the exercise by said engineman of care and diligence in regulating and controlling the speed, in manner aforesaid, of the said moving cars and engine;" that in the performance of such duty he gave the usual signal for the engineer to slacken the speed of the engine and moving cars, took up the link and held it in position to enter the bumper of the cars to be annexed, when the engineer, by putting on steam, reversing his engine, or other unknown means, suddenly increased the speed of the moving cars, caught the plaintiffs hand between the bumpers, without fault on his part, and crushed his fingers.

There were two other counts in the declaration, one of which alleged that it was the duty of one Fisher, another employe of the road, to give the proper signals to the engineer, and while plaintiff was between the cars, he suddenly, and without warning, gave a signal to the engineer which caused the increase of speed and the consequent injury. The third count alleged that both Fisher and plain-tiff gave signals to the engineer (Ellis); that while plaintiff was between the cars, the engineer suddenly, either with or without a signal from Fisher, increased the speed, etc.

It is unnecessary to set out the evidence in detail. It is only necessary to state that plaintiff testified that the link was in the stationary car, and he was proceeding to insert it into the bumper of the moving car, when the accident occurred.

The jury found for the defendant. Plaintiff moved for a new trial on the following among other grounds:

(1.) Because the court charged as follows: "It is for you to say, on the whole case made by all the proof, whether Barber was without fault, and whether the company was at fault, as alleged in the declaration, and Barber cannot recover in this case, unless you find that he was wholly without fault, and that the company was at fault, as alleged in the declaration. If you find that Barber contributed to the injury by any substantial fault, however slight, you need not pursue your investigation any further; it will then be your duty to render a verdict for the defendant. To entitle Barber to recover, he must have been blameless. If he was not blameless, it will make no difference whether Fisher or Ellis, or both of them, was negligent. It will make no difference whether or not Barber acted under the orders of a superior officer; unless he was blameless, he cannot recover. Plaintiff can only recover upon proof of the acts of negligence and carelessness set out in the declaration, and proof of any other act or acts of negligence, or carelessness of the employes of the defendant, will not authorize a recovery, unless the jury is satisfied from the evidence that the acts of negligence set forth in the declaration have been satisfactorily proved."

(2.) Because the court charged as follows: "If you find that Barber was blameless, you will next look to see whether or not Fisher or Ellis, or both of them was guilty of negligence which caused the injury; you cannot find forthe plaintiff, unless you find that Barber was blameless, and that the engineer Ellis, either with or without a signal from Fisher, suddenly put on steam, reversed his engine, or by some means unknown to Barber, increased the speed of the engine so as to cause the bumper of the moving car and the bumper of the stationary car to come together with such rapidity as to render it impossible for Barber to extricate his hand."

(3.) Because the court charged as follows: "If the injury was caused entirely by any negligence of the company's employes other than Fisher...