The Western v. The City Of Atlanta

• Decision Date: 28 February 1885
• Citation: 74 Ga. 774
• Parties: The Western and Atlantic Railroad. vs. The City of Atlanta.
• Court: Georgia Supreme Court

74 Ga. 774

The Western and Atlantic Railroad. vs. The City of Atlanta.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1885.

Municipal Corporations. Railroads. Damages. Streets. Roads and Bridges. Evidence. Judgments. Charge of Court. Before Judge Hammond. Fulton Superior Court. March Term, 1884.

Reported in the decision.

Julius L. Brown; W. D. Ellis, for plaintiff in error.

W. T. Newman; E. A. Angier, for defendant.

Stewart, Judge.

On the 27th day of December, 1882, the city of Atlanta brought suit against the Western and Atlantic Railroad Company, in which suit it was alleged that Foundry street, of said city, crosses the track of the Western and Atlantic Railroad Company, and that said railroad company, on the 20th day of February, 1881, negligently and wrongfully allowed a pair of steps joining a part of Foundry street, where said street crosses the right-of-way of said railroad company, to be out of repair and in a defective and dangerous condition; that Ransom Montgomery, whilst passing along said street and down said steps, on the 12th day of February, 1881, fell and was seriously injured, breaking his right ankle and three ribs, on account of which injuries he was confined to his room many days and suffered great pain; that said Montgomery brought suit in Fulton superior court against the city of Atlanta, and on the 3d day of May, 1882, recovered a judgment against the city for $629.00, with cost, which judgment the city has had to pay. It was further alleged that, whilst the city of Atlanta was primarily liable to said Montgomery, the railroad company was liable over to the city, for the amount which the city had to pay.

On the trial of the case thus brought by the city of Atlanta, the record of the suit of Montgomery vs. The City was introduced in evidence, together with a notice given by the city to the railroad company, before the trial of the case, requesting the railroad company to come forward and defend the suit. The city, on the 19th of May, 1884, recovered a judgment against the railroad company for $629.00, with cost, being the amount of Montgomery's judgment against the city. The railroad company made a motion for a new trial, on various grounds, as set forth in said motion. The motion for new trial was heard by Judge Hammond, and a new trial refused. The decision refusing a new trial was excepted to, and the same is now before this court for review.

From the record it will be seen that the railroad company did not appear and defend the suit of Montgomery, although notified so to do by the city before the trial of the case.

1, 2, 3, 4. The first assignment of error, which we deem proper for consideration, was an objection made by counsel of the railroad company, that the court committed error in admitting in evidence the record of the suit which Ransom Montgomery brought against the city of Atlanta. We hold that the court did not err in ruling that said record was admissible evidence.

Counsel for the railroad company insisted that the railroad was not a party to the suit of Ransom Montgomery vs. The City. In cases of this character, where it is sought by a municipal corporation to recover damages which the corporation has been compelled to pay, on account of the negligent conduct of those who have used the streets, to-wit, the railroad company in this case, after notice, as was given by the city in this case, the record of the former suit was admissible evidence. The railroad company was a party in such manner as to make the record admissible evidence. See 2 Black U. S. Rep., page 418, and 4 Wallace, 657. The same rule which would admit the record of the suit of said Montgomery in evidence, would also make the notice which the city gave the railroad company admissible in evidence, and the court did not commit error in allowing the same to be introduced in evidence, on the trial of the case.

The sixth, seventh, eighth and ninth assignments of error made by attorneys of the railroad company were objections to the rulings of the court.

Counsel for the railroad company offered to show by evidence the condition of the steps where said Montgomery was injured, and desired the witnesses to state whether or not said Ransom Montgomery, by the exercise of reasonable care and caution, could have avoided the injuries which he received. This evidence the court, on objection, ruled out, which ruling of the court was not error. In the case between Ransom Montgomery and the city of Atlanta, the right of said Montgomery to recover, and the question of his negligence or want of care, had been passed upon and settled; and both the city and the railroad company were concluded by that verdict, and should not now be heard to say that Montgomery, by the exercise of reasonable care and caution, could have avoided the injuries which he received.

By the tenth assignment of error, counsel for the railroad company insisted that the court committed error in giving in charge to the jury sections 706 and 707 of the Code of this state.

We hold that the charge of the court was proper. If railroad companies are required by law, as well as by public policy, to keep in good order, at their own expense, public roads and private ways, where the same cross the right-of-way of the various railroads of this state, much stronger should be the reason for keeping in proper order and repair street crossings in cities and towns, which are likely to be thronged with persons, and are frequently used in transporting both persons and property. If not by terms, the spirit of the sections would include street crossings, and the interest and safety of human life and protection to property both demand that railroad companies be held to a strict observance of the law contained in said sections.

Before considering and passing upon the eleventh assignment of error made by the counsel for the railroad company, on the questions made as to the liability of the railroad company to the city, and the liability of the city for injuries occurring in the streets, or such portions of the streets as are included in the rights-of-way of railroad companies, we hold:

First. That a municipal corporation, having the care and control of the streets, is bound to see that they are kept safe for the passage of persons and property. If this duty be neglected, and one should be injured on account ofsuch neglect, the corporation will be liable for damages thus sustained.

Second. If the injury should occur in a street and on account of defects in the same, and if the street, at the point where the injury occurred, was used as a right-of-way of a railroad company, in such case, the municipal corporation would have a remedy over against the railroad company for the amount which it had been compelled to pay, provided it be shown that the injury resulted from the negligent conduct of the agents of the railroad company. In such case, the railroad company would be allowed to show that it was under no obligation to keep the street in safe condition where the injury occurred, or that it was not the fault of...