Western & A.R. Co. v. Esslinger

• Decision Date: 08 April 1895
• Citation: 22 S.E. 580,95 Ga. 734
• Parties: WESTERN & A.R. CO. v. ESSLINGER.
• Court: Georgia Supreme Court

22 S.E. 580

95 Ga. 734

WESTERN & A.R. CO. v. ESSLINGER.

Supreme Court of Georgia

April 8, 1895

Syllabus by the Court.

If there was negligence on the part of the railroad company in leaving a portion of its track in such condition as to render coupling cars unsafe at that point, yet, as it affirmatively appeared from the plaintiff's evidence, which was the only evidence showing how and when her husband was killed that this negligence, if it existed, did not cause or contribute to his death, and the evidence as a whole showing that in all other respects the company was free from negligence, the verdict was unwarranted, and therefore contrary to law. Atkinson, J., dissenting.

Error from superior court, Whitfield county; T.W. Milner, Judge.

Action by Lillie A. Esslinger against the Western & Atlantic Railroad Company. Plaintiff had judgment, and defendant brings error. Brought forward from the last term, under Code §§ 4271a-4271c. Reversed.

Payne & Tye and R.J. & J. McCamy, for plaintiff in error.

Maddox & Starr, for defendant in error.

SIMMONS C.J.

The plaintiff brought her action for damages for the homicide of her husband, who was killed while coupling cars on the defendant's railroad. Three allegations of negligence were made in the declaration: (1) That the cars were moved back too fast; (2) that there was a spike running through the brake beam, which was dangerous to a coupler; and (3) that the ground where the coupling was to be made was dangerous. As to the first and second grounds, there was no evidence to support them. The main contention was over the third ground. It appears that at the place where the homicide occurred there was a street crossing, and the planks of the crossing between the rails of the defendant's track, were from one and a half to three inches thick. The ends of the planks were not beveled, and the dirt seems to have been washed away from them, making it about three inches from the top of the planks to the ground. The deceased undertook to couple the train to a car which was standing on the track at this point, and under which the planks extended for about six feet. The theory of the plaintiff was that the momentum with which the train came back against this car forced the car beyond the point where the ends of the plank were, while the deceased was between the cars, and that the "step off" at the ends of the plank caused him to lose his footing and fall, and before h...