Central Railroad v. DeBray , 71 Ga. 406 ( 1883 )

Blandford, Justice.

The defendant in error brought Ms action on the case against the plaintiff in error in the superior court of Pike county, for injuries which he alleges he sustained by reason of the carelessness and negligence of defendant’s servants.

The jury found a verdict in favor of the plaintiff, and assessed his damages at forty-seven hundred dollars. The defendant moved for a new trial upon many grounds of error alleged in the motion. The court overruled this motion, and refused the new trial prayed for, and defendant excepted, and. assigns as error this judgment of the court refusing this motion for a new trial, and prosecutes this writ of error to have that judgment of the court below reviewed and reversed.

1. The first two grounds of tbe motion are that tbe verdict is contrary to the law, and is contrary to evidence, and without evidence to support it, and they will be considered together.

The evidence shows that tbe plaintiff was employed as a special or extra train, hand to run on defendants cars at night from Atlanta to Macon; that his business was to put on and off brakes, to couple and uncouple cars; that this particular train was on that night engaged in making up a train by picking up such cars along the route as were to be carried to Macon; that when the train was approaching Barnesville, and near there, while the train was moving at the speed of from four to six miles per hour, the plaintiff was directed by the conductor to get off of the train with him and go to the side track near the depot at Barnesville, on which several cars were placed, for the purpose of coupling them to the running train, when it should be backed for that purpose; that plaintiff used the lamp which he had, and got from the train carefully, but in alighting, his feet came in contact with two pieces of timber which were lying crosswise on the roadway of defendant ; these timbers were known as “skids” which were used by defendant’s agents in loading and unloading freight from their cars. The timber on which his feet rested upon alighting from the train, turned and threw him against the running train, whereby he was greatly hurt, bruised, and his right hand became so badly mashed and mangled that the same had to be amputated above the wrist, and that a second amputation became necessary of the bone of the arm; that his pain and suffering was very great. It also appeared that the conductor had preceded plaintiff, and had got off of the train in safety. That this accident and injury to the plaintiff was wholly due to the skids or pieces of timber being left on defendant’s roadway, there can be no doubt; and the court left it fairly to the jury to say, from the evidence submitted to them, whether the defendant, in leaving this timber upon its roadway, was negligent or not. The jury found that the defendant was negligent in so leaving this timber upon its roadway, and we are satisfied with this finding.

But it is insisted that the plaintiff was not bound to obey the orders of the conductor to get off of the train before the same had ceased running. The conductor acted for the defendant corporation; he had charge and command of the train, and it was not the fault of plaintiff in obeying this order, and defendant cannot set up the wrongful act of itself or agents to excuse itself from liability to one who merely obeys an order of this sort.

That the plaintiff used all reasonable care and skill in getting from the train, is made apparent from the evidence of the plaintiff So where one, though he be a train-hand and in the employ of a railroad company, is injured without fault on his part, by the negligence and carelessness of other agents of the company, he is entitled to recover damages for injuries thus received by him. The first two grounds of the motion were properly overruled by the court below. 63 Ga., 179.

2. The third ground of the motion is that the evidence submitted to the jury did not make out the case of the plaintiff as alleged in his declaration.

It is insisted, upon the part of the plaintiff in error, that the proof did not show that the injury complained of was done in the county of Pike, the venue of his action.

It is a sufficient reply to this ground in the motion to say that the record shows that defendant filed no plea to the jurisdiction of the court. Without this, there was no issue of this kind made in the court below. If such plea had been filed, the testimony had upon the trial shows the injury had been sustained by plaintiff at Barnesville, near the depot, and this court will take judicial notice that the city of Barnesville is in the county of Pike.

3. The fourth ground of error complained of in the motion is that the court ruled out a portion of the answer of W. A. Tinsley, as follows: “ And any person with ordinary care could have gotten off over where plaintiff did without being hurt.” • The evidence of the witness ruled out was but a conclusion, and it was for the jury to find this conclusion, and not the witness. There was no error in rejecting this testimony. 36 Barb., 201; 36 Iowa, 36, 473; 78 Ill., 32; 121 Mass., 446.

4. The fifth and sixth grounds of the motion will be considered together. The court refused to allow W. A. Tinsley and N. Schmidt to testify that if one obeys the order of a conductor and gets off of a moving train, “ he does it at his own risk.”

To allow testimony of this kind, would be to allow a witness to testify what the law is. Witnesses must testify to facts, and the court is responsible for the law. There was no error committed upon these grounds. 8 Allen, 441.

5. The seventh ground is covered by the ruling on the fourth ground above. See authorities cited thereunder.

6. The eighth ground is that defendant proposed to prove by one A. J. White that no conductor or other officer had the right to order an employé to get off or on a moving train, and if such orders were given, the employé would not be required to obey the orderr This testimony was rejected by the court, upon the ground that it appeared from the testimony of this witness that he did not know what the rules of the company were' at the time of the accident, and proposed to prove what they were when he was an officer.

This ruling of the court was obviously correct upon the ground he put it, but it appears that this testimony was irrelevant and immaterial. Wylly et al., ex’rs, vs. Gazan, 69 Ga., 506.

7. The 9th ground is, that the court refused to permic A. J. White to testify that he was an expert in all departments of railroading; that no employe is required to get off or on a train when it is moving; that neither the conductor nor any other officer can require an employé to get off or on a moving train; and if such order is given, the employé is not required to obey it.

How such testimony as this can be admissible, even by an expert, is not perceptible to this court. It is sufficient to say, whether or not the conductor had the right to give an order to plaintiff to get off of the train, when in motion, he did give such order, and whether plaintiff was required to obey it or not, he did so obey the order, and the defendant can not now take advantage of its own wrong, and thereby escape the responsibility for its own wrong act, committed by one who was acting for it to such an extent, under the circumstances, as to make the act of the conductor the act of the corporation. Whether it be tlie fault of an employé to obey an order of his superior, depends upon whether it would be rash and dangerous to do so ; and where there was no apparent danger so to do, it would not be fault on ms part. The case of the Western & Atlantic Railroad Company vs. Wilson covers this ground, and is decisive of it. 36 Barb., 201; Code, §386S^*

8. The 10th ground of the motion is close kin to the ninth ground, and other grounds before considered, and is mere matter of opinion of the witness, which the court did right to reject. 45 Iowa, 247.

9. The 11th ground of the motion is, “that the verdict is excessive,” but why is not stated in the motion. A slight review of the testimony brings prominently forth the facts uiat plaintiff had lost his right hand above (he wrist; that he was otherwise greatly wounded and bruised; that he suffered great pain for a long time ; the most useful member of his body was gone; that he is a young man just twenty-three years of age ' has to go through life maimed, “shorn of his fair proportions,” with an imagination that he is whole, but with a reality that he is broken,—suffering continual pain, prospects in life blighted. Excessive damages are such damages as shock the moral sense to such an extent as to lead to the belief that the jury were actuated by undue or improper motives or influences, and such does not appear in this case. The damages assessed by the jury in this case are not only not excessive, but are quite moderate. Code, §§2947,3067; 24 Ga., 366 ; 10 Ib., 37; 30 Ib., 146.

10. The 12th, 13th, 14th, 15th and 16th grounds in the motion are that the verdict of the jury is contrary to certain charges of the court therein set forth. These several grounds are covered by what has been said as to the first and second grounds in the motion. The verdict is not contrary to the law.

11. The 17th ground is that the court erred in refusing to charge the jury: “If plaintiff contributed, either immediately or remotely, directly or indirectly, to his injury, then he cannot recover, regardless of the skids or any other negligence of defendant’s agents.”

This point hád been given in charge to the jury by the court before the request was made, quite as favorably to the defendant as it had a right to expect, and the same appears in the 12th, 13th, 14th, 15th and 16th grounds of the motion before referred to; besides, we are not prepared to go the length embraced in this request, but we adopt the opinion of Jackson, J., in Central Railroad vs. Mitchell, 63 Ga., 181. “ If the damage was caused by another employe and was not caused by the fault or negligence of the employe hurt, then he may recover.” 56 Ga., 196, 645. This request is in the language of the judge who delivered the opinion of the court in Central Railroad vs. Mitchell, which was but argument to show that if fault was attributable to an employé it must be such as contributed to the inj ury; substantial fault.

12. The 18th ground complains that the court should have instructed the jury that if the plaintiff was directed by the conductor to get off at the place where he left the car, while the car was in motion, he cannot plead the order of the conductor as an excuse for the act; if the act was one attended with danger, and the doing of the act put him in fault, the order of the superior could not protect him.

The court had charged, as embraced in the 14th gtound of the motion, as fully on this point as he was required to do, and it was not error to refuse to further charge as requested in this ground; besides, this request assumes that the order of the con duel or was unlawful and that the plaintiff knew it, neither of which appears by the evidence in this case. The court is not bound to give a request in charge to the j ury, when the same point has already been covered by his charge ; nor is he bound, nor should he charge a jury upon a request not warranted by the facts of the case. 56 Ga., 198 ; 37 Mich., 485.

13. The 19th ground of error is covered by what has already been said in reference to the 18th ground. 42 Wis., 583 ; 29 Iowa, 14.

14. The 20th ground of error is as to the refusal of the court to instruct the jury, “ If to do the freight business it was necessary to use a pair of short skids for the handling of freight, and it was necessary for the proper handling of freight to keep the skids between the main and side tracks, and the skids were kept for such purpose in a usual and customary place, plaintiff cannot recover.” The court did right to refuse this request, and this charge is liable to the objection urged to the charge in the 18th ground, besides the case before referred to, Central Railroad vs. Mitchell, 63 Ga., 181, sustains the court. If this injury resulted from the carelessness and negligence of defendant’s agents in leaving these skids on the roadway, it could make no difference whether such negligence had become usual or customary. This point was fully covered by the general charge.

15. The 21st ground of error is that the court erred in refusing to charge, “ If among different modes of performing his duties, some of which were safe, plaintiff chose one less safe or more dangerous, he took the risk of his choice, although other servants did likewise; if you so believe, the plaintiff' could not recoverbut the court modified the request as follows: “ If among many different modes of performing his duties, some of which were safe, the plaintiff chose one less safe or more dangerous, then you will take this circumstance into consideration, with all the other facts of the case, in deciding whether the plaintiff was at fault or not; it is for you to determine from the evidence whether the plaintiff took the risk or not.” The question of fault or negligence on the part of the plaintiff or defendant was for the jury alone, and the question was submitted fairly to them by the court, and there was no error in refusing to charge as requested and giving the charge complained of. Southern Law Review, vol. 5, p. 831.

16. The 22d ground of error is substantially the same as the one embraced in the 20th grdund, and the (same) remarks are applicable to this latter ground as have been applied to the 20th ground.

17. The 23d ground is that the court erred in charging the jury, “ If you believe from the evidence that skids or planks were placed on or near the track of defendant’s road, where the injury complained of occurred, and said planks or skids occasioned said injury to plaintiff, while performing his duties in obedience to orders, and without fault or negligence on his part, then I charge you that the defendant would be liable.” This charge was the law pS/ this case, when taken in connection with the general charge, where it is left to the jury to find whether the leaving the skids on the defendant’s road-way was negligence or not, as will be seen by reference to the case above referred to—63 Ga., 173—and is fully covered by that case.

18. The charge embraced in the 24th ground of complaint is right, as has already been held. 37 Mich., 205.

19. There is no error in the 25th ground; it would seem to be axiomatic that if plaintiff has shown defendant to have been negligent, that to defeat plaintiff, it must be shown that he was likewise negligent or at fault. 56 Ga., 586; 58 Ib., 107, 485.

20. And likewise as to the 26th ground. When plaintiff has shown injury to himself, without fault on his part, it would be incumbent on defendant to show that the injury did not result from the want of ordinary and reasonable care and diligence on the part of its servants and agents. 56 Ga., 586; 58 Ib., 107, 485.

21. The 27th ground complains of a part of the charge as being unwarranted, from the evidence in the case. We think that this charge is warranted from the evidence, as will be shown from an examination of the same.

22. The 28th ground of error complains of the charge of the court upon the subject of special damages. As there were no special damages found by the jury, and as the verdict is such as to warrant the conclusion that no such damages entered into the same, the defendant is not hurt thereby.

23. The entire charge of the court is set out in this record, and is fair, and contains a full exposition of the law, as applicable to every theory of this case, and will always be read as one whole view of the law, and exceptions to a part of it will be considered in the light of all other parts. And the charge as a whole is entirely unexceptionable, and the parts excepted to, Avhen taken in connection with the whole charge, constitute no grounds of error.

See also Central Railroad vs. Mitchell, 63 Ga., 180; 37 Ohio, 669 ; 84 Ill., 109; Atlanta Cotton Factory vs. Speer, 69 Ga., 137; 51 Ga., 582; Thomp. on Negligence, vol. 2, 985 ; 8 Allen, 441; Pierce Am. Rwy. L., 377 ; Reporter, No. 12, vol. 13, p. 383; 45 Wis., 477; 42 Ib., 583; Am. Rwy. Reports, vol. 18, 58.

Upon the whole, we see no error in the several exceptions taken by plaintiff in error in this case. And we conclude this opinion in the language used in case of Central Railroad vs. Mitchell: “The charge is lucid, able, impartial, and without fault; and the judgment overruling the motion for new trial must be affirmed.”

24. It is ordered that the cross-bill of exceptions filed in this case, together with the writ of error thereon be dismissed.

Judgment in main case affirmed; cross-bill of exceptions dismissed.

* Wilson’s cafe is at present term; See also Reporter, v .1. 1.5, No. 14., p. 4;SS.