Wright v. The Ga. R.R.

• Decision Date: 30 June 1866
• Court: Georgia Supreme Court
• Parties: Mercy Ann Wright, plaintiff in error. vs. The Georgia Railroad and Banking Company, defendant in error.

34 Ga. 330

Mercy Ann Wright, plaintiff in error. vs. The Georgia Railroad and Banking Company, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1866.

Case. In Richmond Superior Court. Tried before Judge Hook: April Term, 1865.

The plaintiff's husband, William M. Wright, while traveling as a passenger from Augusta to Camak, upon an express freight train of the Georgia Rail Road, was killed in consequence of the car in which he was—the rear car of the train, called the conductor's car—running off the track and breaking to pieces. The occurrence took place on the 10th of August, 1863, at a curve, near Bel Air, where the rail was slightly worn, and while the train was running at only ordinary speed. After the accident, the track was measured where the run-off commenced, and was found to be about one-fourth of an inch too wide. Only the one car, however, left the track, —the rest of the train passing over safely.

Two of the passengers testified that they themselves could discover ho cause for the accident, but that the break man said on the evening of the same day, " that he had told them that such an accident would take place some day or other, because the axle was two inches too short." The conductor testified that no such statement was made by him, and that he examined the car before leaving Augusta, and occasionally during stoppages, and found nothing wrong with it, —that it had been running for several years. The breakman testified that he also examined the car during stoppages, and found nothing the matter with it, and knew of nothing wrong; that he never said an accident would take place, and that the axle was two inches too short; that if anything had been wrong he never would have left Augusta on it. The superintendent of the road testified that the condition, generally, of the road was bad, owing to the difficulty of getting iron, growing out of the exigencies of the war, such as the blockade by sea, the impressment of ships, steamboats, and railroads by government, the presence of large armies in our midst, and the occupation and use of the iron mills by the government. He stated that the road had, in Atlanta, in 1863, for the purpose of being rolled there for repairing the road, a good deal of iron, and that the rolling mill was seized by the government to make iron for gunboats. Also, that some iron purchased for the Milledgeville Ralilroad, was seized by the government. He stated that every thing that could be done was done by the company to keep the road in the best possible state of repair that surrounding circumstances would admit of; that in 1863, prior to August 10th, about 500, 000 tons of iron was obtained, and used wherever thought to be most needed; that the iron on the part of the road where the accident occurred, was the "U" rail, upon which, when worn, a run-off is always more probable than upon the "T" rail, and that, in a curve, with this rail worn, there is great danger of the hinder most car jumping the track.

In his argument to the jury, the counsel for plaintiff made the point, that it was the duty of a railroad company to have their passenger cars inspected, previous to each journey, to ascertain their fitness for travel, and if there was a failure in this case, it was not such diligence as the law requires. As to this point, the presiding Judge certifies that, before he began his charge, he called upon counsel to present their requests in writing, and this was not presented; and that hedoes not remember to have charged distinctly, or passed directly upon it.

Besides others which the Court gave, the plaintiff's counsel presented in writing the two following requests to charge:

1. If the jury believe there was a curve in the road where the injury happened, and that the rail was worn at that place, it was the duty of the conductor to slacken his speed; and if he ran his train over that portion of the road on the usual running speed, it was not such extraordinary diligence as the law requires, and the plaintiff must recover.

2. If the jury believe that the axle of the car was two inches too short, and that the attention of the company was called to it, the jury may presume that this was the cause of the injury.

These requests the Court declined to give in charge, but stated to the jury, that if the facts relied upon in the same had been proven, they, as well as all other facts in the case, were to be received and weighed by the jury in determining the question of diligence; that the effect of the testimony was for them to pass upon, and not for the Court to decide.

At the request of defendant's counsel the Court charged:

1. That unless an absence of reasonable care and diligence, under all the circumstances of the case, on the part of the defendant, or agents, or employees of defendant, from which the death of the plaintiff's husband resulted, has been proven, then there can be no recovery against the defendant; that reasonable care and diligence is exercised, if the company has done all that human care and foresight can do.

2. That a railroad company is never liable for the death or injury of a passenger, unless there has been an absence of such reasonable care and diligence as has been above defined.

3. That, applying these principles to this case, if the jury believe the defendant has exercised all reasonable care and diligence, done what human skill and foresight could do, for the purpose of keeping this road in repair, and yet, by theinterference of the Government or its officers, its monopoly and occupation of iron mills, and its seizure of iron which had been provided by the defendant for repairs, it has been prevented from making the repairs which would have precluded this accident, then is not the defendant liable, though the death of the plaintiff\'s husband may have resulted from the want of such repairs.

4. That if it has been shown to the satisfaction of the jury, that the company and its officers exercised reasonable care and diligence, did what human skill and foresight could do, in the effort to procure iron for the road, and, notwithstanding this, by reason of circumstances in which the country was placed, at the time of this accident, —the blockade by sea, the presence in its midst of large armies, the engrossment, more or less, of ships and steamboats, and railroads, in transporting for the Government, the occupation and use of the iron mills upon which the defendant was compelled to depend for iron, the seizure of iron belonging to the company, intended for repairs, by officers of the Government, — the company has not been able to place this road in a state of efficient repairs, then, though the death of the plaintiff's husband resulted from the want of such repairs, yet is the defendant not liable in this case.

5. That the diligence which is required of a railroad carrying passengers, is not that extraordinary diligence which applies to common carries of merchandise, and holds them bound for every loss or damage which did not result from the act of God or the State's enemies,...