Wallace v. Cannon

• Court: Supreme Court of Georgia
• Writing for the Court: WARNER, J
• Citation: 38 Ga. 199
• Decision Date: 31 December 1868
• Parties: CAMPBELL WALLACE, Superintendent of the Western and Atlantic Railroad, plaintiff in error. v. MARY E. CANNON,defendant in error.

38 Ga. 199

CAMPBELL WALLACE, Superintendent of the Western and Atlantic Railroad, plaintiff in error. v. MARY E. CANNON, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

Brown, C. J., having once argued this cause in the Supreme Court, declined presiding.

Motion for new trial. Charge of the Court. By Judge Collier. Fulton Superior Court. October Term, 1867.

Those curious about the history of this case, are referred to

[38 Ga. 200]

Cannon v. Rowland, Sup. W. & A. R. R., 34th Ga. R. 422 S. C. 35th Ga. R., 105.

The new superintendent was made a party, Rowland having died. It was an action by Mary E. Cannon, widow of Sylvester Cannon, an employee of the Western and Atlantic Railroad, because of his death by the alleged carelessness of the employees of the said railroad, on the 6th of July, 1862, while he was acting as engineer, on a train from Atlanta, Georgia, to Chattanooga, Tennessee. Besides the general issue, the defendant plead that, at the time of the killing, there was no legal government of, or in, the State of Georgia, and no legal superintendent, agents or employees of the Western and Atlantic Railroad, and that said collision and killing did not take place by reason of any fault, negligence or misconduct of any lawful officer, agent or employee of the Western and Atlantic Railroad; that at said time, the government of the State of Georgia, and superintendence, control and management of the Western and Atlantic Railroad were in the hands of persons, inhabitants of Georgia, then engaged in insurrection against the Government of the United States; that, at said time, said Sylvester Cannon was, by acting and serving as engineer on said railroad, unlawfully aiding and *abetting the enemies of the United States, because the persons with whom and under whom he was so acting and running, were then engaged in acts of hostility, and were in insurrection against the United States, and because said Cannon was, as such engineer, assisting in the transportation of troops, knowingly and willingly, to wage war against the United States; that said Sylvester Cannon was, at that time, an inhabitant of the State of Georgia, and was in insurrection against the United States; that, at that time, Georgia was a State in which the laws of the United States were opposed, and their execution obstructed by insurgents and rebels against the United States, too powerful to be suppressed by the ordinary course of judicial proceedings; that, by acting then, as such engineer, and

[38 Ga. 201]

assisting in conveying and transporting insurrectionary troops to fight against the forces of the United States, he was resisting and interfering with the unrestrained use by the Government of the United States of said railroad, contrary to the Act of Congress, approved 31st of January, 1862, entitled, "An Act to authorize the President of the United States in certain cases to take possession of railroads and telegraph lines, and for other purposes;" that, at said time, Cannon owed allegiance to the United States, and was engaged in levying war against the United States, and in giving the enemies thereof aid and comfort; that Cannon, at said time, was negligent and actively in fault, and did, by his misconduct, contribute to his own destruction; and lastly, that any debt or liability that may have been incurred by reason of plaintiff\'s allegations, was, in fact, incurred while carrying on the late war of secession against the United States of America, and in aiding and abetting and promoting said war. It was shewn that Cannon was killed by a collision on said road, on Sunday, the 6th of July, 1862; that he was at the time acting as engineer of the train from Atlanta to Chattanooga, freighted with passengers, most of whom were Confederate soldiers, who had no guns but two or three cannon, besides horses and harness, and wore the Confederate uniform; two of the cars were passenger cars, twenty-one other cars carried the soldiers. The train was the regular mail train, which *carried many letters and packages and military orders to the Confederate soldiers and Generals; that the down train which collided with his, was a...