Western & A.R. Co. v. Bussey

• Decision Date: 04 December 1894
• Citation: 23 S.E. 207,95 Ga. 584
• Parties: WESTERN & A. R. CO. v. BUSSEY et al.
• Court: Georgia Supreme Court

23 S.E. 207

95 Ga. 584

WESTERN & A. R. CO. v. BUSSEY et al.

Supreme Court of Georgia

December 4, 1894

Syllabus by the Court.

1. Where, under the provisions of section 3893 et seq. of the Code, depositions of a witness are taken for use in a cause then pending, at the trial of such cause the depositions so taken may, in the discretion of the court, be read in evidence, notwithstanding the presence of the witness at the trial.

2. Rules prescribed by railroad companies for the government and direction of their employes, in the discharge of their duties, and for the nonobservance of which an employé forfeits a right of recovery which otherwise would accrue to him, are to be strictly construed against the company, and will not, by implication, be extended beyond their clear and obvious meaning.

3. Although a rule of the defendant railroad company prohibited the running of its trains above a certain rate of speed at a given switch point, it was not error to refuse a request to charge that it was the duty of the engineer to "slacken" the speed of the train at such point; the request leaving out of consideration the rate of speed at which the train in question was actually being run at such given point at the time the collision occurred which resulted in the injury complained of.

4. Notwithstanding a rule of the defendant company requiring all trains to stop at schedule meeting and passing points, the court did not err in refusing a request to charge that it was the duty of the engineer to stop his train at the point where the collision occurred, it not appearing that the same was either a schedule meeting and passing point. Nor did the court err in charging the jury that the engineer, under such rule, could pass other than schedule meeting and passing points "at such rate of speed as common prudence dictated as safe."

5. Where a rule of the company enjoined upon a coemployé of the plaintiff the performance of a particular duty, such coemployé was bound to exercise ordinary care in the discharge of that duty; and it is not cause for reversal that the court charged the jury that, if such coemployé failed to exercise ordinary care in discharging such duty, they "ought to find the defendant company negligent in that regard."

6. A special bulletin order regulating the speed of trains when passing certain particular switch points designated therein has no application to switch points generally, and, in the absence of evidence showing that the point at which the disaster occurred was of the particular class of switch points embraced within the terms of such order, the court did not err in charging the jury that this order could have no application to the point in question.

7. Where a special order of the company prohibited the running of trains at a greater rate of speed than 20 miles per hour at a given switch point, the court did not err in charging the jury as follows: "If [the engineer] was not running faster than twenty miles per hour when he passed the switch you ought to find that he did not violate the bulletin order mentioned, even though he ran faster than that at a point further back on the track."

8. Where a rule of the company prohibited generally the use of intoxicating liquors by its officers and employés, the use thereof by an employé who sues for personal injuries would not defeat a recovery, unless such use contributed in some appreciable degree to producing the injury sustained. That the violation of such rule might have done so, if it did not in fact so contribute, would not defeat a recovery. The court therefore properly charged the jury "that, if such employé violated the rule in question, the presumption would arise that such violation contributed to produce the collision, and the burden of proof was on him to show that it did not so contribute, directly or indirectly."

9. The charge of the court upon the measure of damages and upon the rules for computing the same was, in the main, correct; and that the trial judge omitted to inform the jury that in the annuity table there were two columns, one designed for computing interest at 6, and the other at 7, per cent., is no cause for the reversal of a judgment refusing a new trial, it appearing that the amount of damages recovered is not at all excessive, and clearly within the sum to which the plaintiff would be entitled if computed under either rate per cent.

10. The charge of the court as a whole was full, fair, and in all essential respects free from error; the verdict, upon careful review of the evidence, is fully warranted; and, having been approved by the presiding judge, will not be disturbed.

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by Henry H. Bussey and others, by their next friend, against the Western & Atlantic Railroad Company. Plaintiffs had judgment, and defendant brings error. Affirmed.

Payne & Tye, for plaintiff in error.

Smith & Pendleton, for defendants in error.

ATKINSON J.

Mrs Bussey sued the defendant company for damages because of the homicide of her husband, alleged, in substance, to have been caused by the negligence of the agents of the defendant in turning one of its switches to a side track upon which one of the trains of the company was standing, and in so leaving the switch as that, when the train upon which her husband was the engineer, which was due, arrived at that place, his engine took the side track, and collided with the train thereon; and because the defendant was further negligent in that, it being dark at the time of the collision, its servants gave no warning, by switch lights or otherwise, of the condition of the switch. The declaration further alleged that the engineer who was injured was free from fault. The original plaintiff having died pending the action, the present plaintiffs, who were the children of herself and her deceased husband, were made parties plaintiffs by their next friend. Upon the trial of the case many questions of fact and law arose which involved the interpretation and application of certain rules adopted by the railroad company for the government of its employés. The rules introduced were as follows, to wit:

"Rule 17. All trains must stop at schedule meeting or passing points, unless the switches are plainly seen to be right, and the track clear. The point at which a train should stop is the switch to be used by the train to be met or passed in going in on the siding." "Rule 23. Passenger trains will not exceed thirty-five, nor freight trains twenty, miles per hour." "Rule 35. All trains will run with great care after rains, and slacken their speed when the track is in bad order, while passing switches and when crossing long bridges and trestlework, and, when practicable, shut off steam." "Rule 41. Conductors have entire charge and control of their trains and all persons employed on them, and will be held responsible for the movements of their trains while on the road, except when their directions conflict with the rules, or involve risks or hazards, in either of which cases the engineer will be held alike accountable. Copies of special orders concerning the movement of a train will be furnished to both engineer and conductor; and, where such orders are telegraphed, both engineer and conductor must reply by a signal message to the officer by whom the order was issued, stating how they understand the order, and must not leave the station at which it was received until notified by the proper officer that the order is correctly understood." "Rule 46. Conductors and engine men will consult the bulletin board daily, and note all new orders." "Rule 90. The use of spirituous liquors, profane swearing, obscene language, boistering, swaggering, or other conduct unbecoming a gentleman, will not be tolerated in the employés of this road, either on trains, at stations, eating houses, or elsewhere. Rudeness or incivility to passengers or other patrons of the road will in all cases meet with immediate punishment." "Rule 95. Conductors and engine men will be held equally responsible for the violation of any of the rules governing the safety of trains, and they must take every precaution for the protection of their trains, even if not provided for by the rules." "Rule 96. Run no risk; take the safe side in case of doubt."

Special Instructions: "Rule 4. The use of intoxicating liquors is forbidden to the officers and men engaged in the service of the W. & A. R. R. Any one who becomes intoxicated will be dismissed." "Rule 5. Run no risk; take the safe side in case of doubt."

There was a verdict for the plaintiffs for $6,000, and, defendant's motion for a new trial having been denied, it excepted. The motion was upon the general grounds, upon the ground that the verdict was excessive, and upon the special grounds with which we now proceed to deal.

1. It appears that upon the trial of the case plaintiffs' counsel offered to read in evidence the depositions of one Earwood, a witness for the plaintiffs, the depositions of this witness having been taken before a commissioner, under section 3893 et seq. of the Code. At the time the plaintiffs offered to read the depositions in evidence it appeared that the witness was himself present in court, and thereupon the defendant objected to the depositions being read, and insisted that the witness should be put on the stand, and examined orally. The court overruled the objection, and allowed them to be read. It is urged upon us with great earnestness by counsel for the plaintiff in error that these depositions should have been excluded, and that the analogy of decisions rendered in this court in which the answers to interrogatories taken were excluded when the witness was himself present at the trial should be applied to the class of...