The Western v. Strong

• Decision Date: 31 July 1874
• Citation: 52 Ga. 461
• Parties: The Western and Atlantic Railroad Company, plaintiff in error. v. Mary Strong, defendant in error.
• Court: Georgia Supreme Court

52 Ga. 461

The Western and Atlantic Railroad Company, plaintiff in error. v. Mary Strong, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Husband and wife. Laws. Railroads. Contracts. Before Judge Hopkins. Fulton Superior Court. October Terms, 1873.

*Mary Strong, by her declaration, averred that the Western and Atlantic Railroad Company employed Macon Strong, her husband, as a brakesman, on January 1st, 1872, and that while thus employed, required him to work on a long train of cars going from Chattanooga, Tennessee, to Atlanta, Georgia; that in going from one car to another, in the night, without fault on his part, and on account of the improper, badly arranged and unworkmanlike coupling of said cars, he was thrown from the cars, and run over, crushed, mangled and instantly killed, and in this way she was deprived of the support and maintenance which her husband was bound by law to provide, and that she was damaged $10,000 00.

The declaration was amended by averring that the laws of Tennessee are similar to the laws of Georgia in making defendant liable. That Macon Strong was not instantly killed, but was thrown upon the track, dragged under the train and along the track and severely bruised, so as to tear and break the flesh from his face, inflicting great agony of mind and pain upon him. and was afterwards drawn under the wheels and killed.

The defendant demurred to the declaration upon the following grounds:

1st. Because no cause of action is shown in said declaration.

2d. Because plaintiff's right to recover depends upon her husband's right to have recovered, and there was no law of force allowing him to have recovered anything against defendant.

^*3d. Because the right of action, if there was any, by the laws of Tennessee, the place where said killing is alleged to have occurred, is in the personal representative of the husband killed and not in his widow.

The demurrer was overruled, and defendant excepted.

The defendant pleaded the general issue and special contract with Macon Strong, as follows:

*" Office of "Western and Atlantic Railroad Company, "Atlanta, February 26, 1872.

"This agreement witnesseth that Macon Strong has, at his own request, this day been employed on said railroad; and it is hereby understood between the parties, and expressly agreed, that the said Macon Strong, in consideration that the said Western and Atlantic Railroad Company will hire and pay him the wages stipulated, which is more than he can get elsewhere, will take upon himself all risk connected with, or incident to, his position on the road; and will, in no case, hold the company liable for any injury or damage he may sustain, while so employed, in his person or otherwise, by what are called accidents or collisions on the trains or road, or which may result from the negligence, carelessness, or misconduct of himself or any other employee or person connected with said road, or in the service of said company, or from any other cause.

"And it is further agreed that the company is to pay the said Macon Strong for no time lost from its service by accident, from disability, or otherwise, but is to pay at the rate which may, from time to time, be agreed upon, only for the services actually rendered by the said Macon Strong, and the company reserves the right to discharge him, whenever they are not satisfied to retain him. And the said Macon Strong expressly waives and relinquishes any and all legal rights he may have, that are in conflict with this contract, and assumes all risk.

"In witness whereof, the said Macon Strong and said company, by Joseph E. Brown, its president, have hereunto set their hands and seals. (Signed)

"Macon, Strong, [L. S]

"Joseph E. Brown, [L. S.]

"President Western and Atlantic Railroad Company. Attest—"J. G. W. Wills, "G. W. Hunt."

*The evidence is unnecessary to an understanding of the opinion, except so far as it showed the homicide to have been in Tennessee. The jury found for the plaintiff $500 00. The defendant moved for a new trial upon the following grounds, to-wit:

1st. Because the verdict was contrary to the following charge of the court: "If Strong's own negligence contributed to his death, then there could be no recovery in this case. If he failed to take that care of his person that a prudent man would take under similar circumstances, and that was the cause of his death, he could not recover, and plaintiff cannot recover."

2d. Because the verdict was contrary to the charge following: "If Strong was instantly killed there could be no recovery in this case."

3d. Because the verdict was contrary to the charge following: "It is said, as an additional reason why this action should fail, that Strong entered into a contract with the defendant, through its president, by which he agreed that he would take on himself all risk connected with his employment, and that he would not, in any case, hold the company liable for damages he might sustain in his person caused by what are called accidents or collisions, or that might result from his own negligence or that of any other employee or agent of the road. If you find that he entered into such a contract as that, and that it was the subsisting contract, under which he was working at the time of the accident he would be bound by it and by its terms, and for such injuries as he might suffer from the causes...