Wolf v. East Tenn.

• Decision Date: 28 December 1891
• Citation: 14 S.E. 199,88 Ga. 210
• Parties: Wolf. v. East Tennessee, v. & G. Ry. Co.,
• Court: Georgia Supreme Court

14 S.E. 199

88 Ga. 210

Wolf.

v.East Tennessee,

v.& G. Ry. Co.,

Supreme Court of Georgia.

Dec. 28, 1891.

(two cases.)

Injury to Employe—Contributory Negligence —Rulings on Evidence — Employment op Minor.

1. The evidence showing clearly that one of the plaintiffs, an employe, was not free from fault, and, there being no evidence that the structure which caused the injury was located so as to be dangerous to employes when engaged in the line of their duties, the nonsuit as to him was properly granted. Railroad Co. v. Webb, 61 Ga. 686.

2. For the same reasons the nonsuit was properly granted as to the action in favor of the employe's father, his implied consent to the employment of his minor son by the railroad company being fairls deducible from the facts in evidence, and there being no proper foundation for an inference to the contrary.

3. The error, if any, in admitting or excluding evidence, had no effect on the controlling elements of the controversy.

(Syllabus by the Court.)

Error from superior court, Gordon county; T. W. Milne it, Judge.

Suit of W. D. Wolf, by bis father, as next friend, against the East Tennessee, Virginia & Georgia Railway Company, to recover damages for personal injuries. Suit by the father also against the same defendant for loss of services of his son by reason of such injuries. Cases consolidated and tried together. J udgment for defendant by nonsuit. Plaintiffs bring error. Affirmed.

The following is the official report:

W. D. Wolf, a minor, by his father, as next friend, sued the railway company for damages for personal injuries, and the father also sued the company for loss of services, etc., of his son. The cases were consolidated, and heard together. After the introduction of evidence for the plaintiffs the court granted a nonsuit, to which the plaintiffs excepted, and they also excepted to the refusal to admit and the admission of certain testimony, to be hereafter mentioned.

The testimony of W. D. Wolf was to the following effect: He was front brake-man on the train of defendant which stopped at Sugar Valley, a station on defendant's road, about 7 o'clock p.m., after dark, in December, 1889. He got down and commenced to go back towards the caboose on the west side of the track, and met the conductor, who told him to cross over, and come down on the other side, and look for hot boxes, which he did. He then went to a store at the station, and while there the engineer rang the bell, and he went out and caught the first car when he got out to the train. When he got to the train, just as he walked up, he saw two men between the cars. There was a "stirrup" and one catch on the side of the car, and then the ladder went up on the end between the cars. He put his foot in the stirrup on the lower edge of the side of the car, and felt something strike his leg and hip, and that was all he remembered until he regained consciousness after being badly injured. He did not know what struck him. The first thing be remembered after falling was seeing his lantern under the cars and the cars running over him. He did not feel the car strike him. He did feel when he got hurt. In addition to being struck on the leg and hip, and having his arm run over, he was hurt also in the small of his back. He supposed he was hurt by a mail crane or "grab." He had been working on the road for some time, and had run on the train by this station, and had been at this station before, but never saw this mail grab there before he was hurt. He knew nothing of this mail crane. No one notified him of it or other obstructions, or warned him of the dangers of the road. His father did not consent to his employment on the railroad, but he knew of it, and did not forbid it. When he got to the train he supposes it was moving about two miles an hour, and the mail crane was about "24 feet from the crossing where be got on. When he came against something it struck him pretty heavy. The box and steps of this crane are about 18 inches from the "clear of the car, " but some are wider than others. The "grab" is a box about three feet square, filled with rock: and the steps came out even with the edge of the box, the box and steps being about four feet five inches high. Thinks it was the top part or step that struck him. The box could not have struck him while he was on the car There were no bruises where it struck him He had seen some mail...