Wrightsville & T.R. Co. v. Tompkins

• Decision Date: 03 April 1911
• Docket Number: 3,110.
• Citation: 70 S.E. 955,9 Ga.App. 154
• Parties: WRIGHTSVILLE & T. R. CO. v. TOMPKINS.
• Court: Georgia Court of Appeals

70 S.E. 955

9 Ga.App. 154

WRIGHTSVILLE & T. R. CO. v. TOMPKINS.

No. 3,110.

Court of Appeals of Georgia

April 3, 1911

Syllabus by the Court.

Where an employé sues a railroad company under the act of 1909 (Acts 1909, p. 160), now Civ. Code 1910, § 2782 et seq. defining the liability of carriers by railroad for injuries received by employés in the service, the presumptions and methods of carrying the burden of proof are as follows:

(a) If it does not appear that the plaintiff was himself connected with the transaction from which the injury flowed, and if it appears that he was hurt through the running of the defendant's cars or machinery, or by the act of some fellow servant, the presumption authorized by Civil Code 1910, § 2780, comes to his aid, and he makes a prima facie case merely by showing that he was damaged through one of the methods specified. If the damage did not ensue from one of the causes specified in the Code section just cited, the plaintiff must prove the defendant's negligence without the aid of the presumption.

(b) If the plaintiff himself was connected with the transaction through which his injury ensued, he cannot rely solely upon the statutory presumption to make out his case. If the transaction is not one as to which the statutory presumption applies, he must prove the negligence by some affirmative proof, but need not go further and negative his own contributory negligence.

(c) If the transaction in which the plaintiff was damaged was one as to which Civil Code 1910, § 2780, applies, and the plaintiff was himself a party to the transaction, he may make a prima facie case by proving either of two additional things: (1) That he did not bring about the injury by his own careslessness, amounting to a failure to exercise ordinary care; or (2) that the defendant or its other servants were in fact negligent in one or more of the respects charged in the petition. The defendant, taking at this stage the burden of reply, can successfully defend by disproving either of these propositions, or by proving that, notwithstanding it or its servants were guilty of negligence, the plaintiff, by the exercise of ordinary care, could have avoided the consequences.

(d) If it appears, either by affirmative proof or by presumption that the defendant was negligent, and it also appears that the plaintiff was somewhat at fault (but less at fault than the defendant), the plaintiff may nevertheless go to the jury, and may recover (unless it appears that his injury was brought about by his own carelessness, amounting to a failure to exercise ordinary care, or that by the exercise or ordinary care he could have avoided the consequences of the defendant's negligence), and in such cases the jury may diminish the damages in proportion to the amount of negligence attributable to the plaintiff.

Where the petition claims damages on account of pain, mental suffering is included; and, if the evidence so authorizes, it is proper for the judge to instruct the jury upon that subject.

The evidence fully authorizes the verdict. It is not excessive.

Error from City Court of Sandersville; K. J. Hawkins, Judge.

Action by C. T. Tompkins against the Wrightsville & Tennille Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Daley & Daley and Evans & Evans, for plaintiff in error.

Smith Hastings & Ransom and Hardwick & Wright, for defendant in error.

POWELL J.

This case arose under the act of August 16, 1909 (Acts 1909, p. 160), now embodied in Civil Code 1910, § 2782 et seq. This act relates to the liability of carriers by railroad for injuries to their employés received in the course of the service and is very similar to (though not absolutely identical with) the act of Congress on the same subject. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171). Under this act, as was true under the law of this state at the time the act was passed, employés of railroad companies may recover of their employers for the negligence of fellow servants. Under the prior law the injured servant could in such employments recover for injuries received through the negligence of fellow servants, provided that it appeared that he himself was "without fault or negligence." See Civil Code 1895, § 2323. Under that law it was held that, unless the injured employé was free from all blame so far as the material causes of his injury were concerned, he could not recover. The chief change worked by the act of 1909 is to allow the injured employé to recover though he was somewhat at fault, unless his fault or neglect amounted to a "failure to exercise ordinary care," or unless he "by the exercise of ordinary care could have avoided the consequences of the defendant's negligence." The doctrine of comparative negligence (by which the damages may be apportioned where both parties are at fault, but the fault of the plaintiff is the lesser), theretofore applicable generally as to other negligence cases, was made applicable also to the class of cases dealt with in the statute. In the course of the act it is provided: "In case death results from injury to the employé, the employer shall be liable unless it make it appear that it, its agents, and employés have exercised all ordinary and reasonable care and diligence; the presumption being in all cases against the employer. If death does not result from the injury, the presumption of negligence shall be and remain as now provided by law in case of injury received by an employé in the service of a railroad company."

In the present case death did not result from the injury. The plaintiff was hurt by the running of the cars, and on the subject of burden of proof and presumption of negligence the court charged the jury as follows: "In a case of this character the burden is upon the plaintiff to show that he was injured, and injured by the negligence of the railroad company, or that he was injured by the railroad company, and not from the want of the exercise of ordinary care and diligence upon his part. In other words, if he shows by the evidence that he was injured by the defendant company, and that it was on account of the negligence of the defendant company, and without the want of the exercise of ordinary care and diligence upon his part, then the burden is upon the defendant to show that it exercised ordinary care and diligence and was not guilty of neglect. I charge you, gentlemen, that in order to make the principle that I have given you in charge clear to you, I repeat just here that the burden is upon the plaintiff to show one of two things: If he shows by the evidence that he was injured while at work as an employé of the defendant company, and that it was not because of the want of the exercise of ordinary care and diligence on his part, then the burden would be upon the defendant to show that it had exercised ordinary care and diligence in the matter; or, if the plaintiff showed that he was injured by the negligence of the defendant company in the discharge of his duty, then the burden would be upon the defendant to show that the plaintiff was wanting in the exercise of ordinary care and diligence." Immediately following this, the court explained to the jury that the plaintiff could recover only in the event that the defendant was negligent and the plaintiff himself had not through lack of ordinary care contributed to the injury and had used ordinary care in avoiding the consequences of the defendant's negligence. The exception taken to the charge is that the court should not so have restricted the element of the plaintiff's negligence as he did, but should have charged the jury that the plaintiff could not carry the burden of proof without showing that he was free from fault.

The question arises as to what Civil Code 1910, § 2782, means when it says that, "if death does not result from the injury, the presumption of negligence shall be and remain as now provided by law in case of injury received by an employé in the service of a railroad...