Western And Atl. R.R. Co. v. Bishop

• Decision Date: 31 July 1873
• Citation: 50 Ga. 465
• Parties: WESTERN AND ATLANTIC RAILROAD COMPANY, plaintiff in error. v. LUCIEN J. BISHOP, defendant in error.
• Court: Georgia Supreme Court

50 Ga. 465

WESTERN AND ATLANTIC RAILROAD COMPANY, plaintiff in error. v. LUCIEN J. BISHOP, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Railroads. Contracts. Negligence. Before E. M. Dodson, Esq., Judge pro hac vice. Catoosa Superior Court. February Term, 1873.

Bishop brought case against the Western and Atlantic Railroad Company for $20,000 00 damages, alleged to have been sustained from injuries inflicted upon him, when in the discharge of his duties as a train hand, resulting from the defective machinery used upon the road of said defendant for the purpose of coupling cars.

The defendant pleaded the general issue, and specially that the plaintiff was one of its employees, and had previously signed a contract to take all risks incident to his employment, and that it was in consideration of said agreement that he was employed.

The evidence presented the following case: On the morning of December 6th, 1871, at Dalton, plaintiff was severely injured when attempting to couple a tender to a freight car. He was a train hand in the employment of defendant, and had been acting in this capacity for some ten months previous thereto. It was his duty to couple cars. J. R. Anderson, the conductor of the train to which he was attached, was present and directed the particular coupling at which plaintiff was *injured, to be made. The coupling was attempted to be made with a dragbar; not a straight one, but containing a hinge. The tender was higher than the buffer on the car. The dragbar was too short; it caught upon the bottom of theopening of the car buffer, and the pressure tore the buffer loose on one side from the car and pressed it down, the hinge in the dragbar turned, and the tender passed on and mashed the plaintiff against the car. He was very seriously hurt, was unconscious for some minutes; questionable whether he will ever be perfectly sound again.

When the hinge in the dragbar turned over, it permitted the tender to pass on over the buffer of the car. This engine had been used on the road ever since plaintiff was employed. The defendant has now a different kind of coupling on the engine from that which was used when plaintiff was hurt. This coupling is regarded as unsafe and not generally used, though it was attached to other engines on the defendant's road. The plaintiff had been perfectly familiar with this species of machinery from the time he entered the service of the defendant, some ten months before, up to the time of the accident. He was about twenty-nine years of age when injured. He was receiving $1 00 per day for his services, though they were worth $1 25. He had been receiving $1 25 per day, but his wages were reduced. He signed the following contract:

"Office Western and Atlantic Railroad Company.

"Atlanta, March 4th, 1871.

"This agreement witnesseth, that Lucien J. Bishop has, at his own request, been employed as a train hand on said railroad; and it is understood between the parties, and expressly agreed, that the said Lucien J. Bishop, in consideration that the said Western and Atlantic Railroad Company will hire and pay him the wages stipulated, will take upon himself all risks 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 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 another employee or person connected with said road, or in the service of said company. And it is further agreed, that the company is to pay the said Lucien J. Bishop for no time lost from its service by accident, disability or otherwise, but is to pay at the rate which may from time to time be agreed on, only for the service actually rendered by the said Lucien J. Bishop. In witness whereof the said Lucien J. Bishop and said company, by Joseph E. Brown, its president, have hereunto set their hands.

(Signed.) "L. J. Bishop.

"Joseph E. Brown, President

"Western and Atlantic Railroad Company.

"Witness: J. G. W. Mills."

The jury returned a verdict in favor of the plaintiff for $5,000 00 damages. The defendant moved for a new trial upon the following grounds, to wit:

1st. Because the Court erred in charging the jury as follows:

"In construing this contract it is the duty of the Court to look to the law of the land and the surrounding circumstances. It is the duty of railroad companies, imposed upon them by law, to furnish cars, engines, machinery and fixtures, that are reasonably safe and suited for the purposes for which they are used. The road cannot legally use such machinery as to subject its employees to an unnecessary or extraordinary risk or hazard. The contract, in this case, does exempt the railroad lessees from all liability for damages which result from the use of machinery, cars, fixtures, etc., that are reasonably safe and only ordinarily hazardous; but does not apply to any case that might arise from the use of cars, engines, couplings and fixtures that are more than ordinarily unsafe and hazardous.

"If plaintiff was damaged by the use of unsafe cars, engines, couplings, etc., that are more than ordinarily unsafe and dan gerous, and he was guilty of no fault or carelessness *on his part, he is entitled to the damages actually sustained by him, if the company knew or might have known, by the use of ordinary care and prudence, that they were more than ordinarily dangerous. If these facts exist, the rights of the parties are not affected by the contract. If plaintiff knew the character of the machinery, cars, etc., that he was to use, at the time he made the contract, and if he knew the engine, tender and coupling that he was to use, at the time he made the contract, then he cannot recover for damages in doing what he agreed to hazard. But it must be shown by proof that he knew the facts at the time he made the contract, and his learning the facts after the contract was made would not deprive him of his right of action."

2d. Because the jury found contrary to that portion of the charge which instructed them, that if plaintiff knew the character of the machinery, cars, etc., that he was to use, at the time he made the contract, and if he knew the engine, tender and coupling that he was to use, at the time he made the contract, then he cannot recover for damages in doing what he agreed to hazard.

3d. Because the Court erred in charging that, "if the evidence satisfies the jury that the injury complained of was caused by the defective character of the machinery or couplings provided by the defendant, and not from any negligence of the plaintiff, and if this machinery was of such character as to be dangerous to life, then the contract that plaintiff signed would not operate to relieve the defendant from liability. Railroad companies are bound to provide...