*1 presented which was and which controlled the decision employee, was whether the defendant’s at the time the acting received his the scope within employ- ment the defendant. overruling
The court did not err in pe- demurrers to tition. plaintiff. court erred favor of the Quillian
Judgments part part. reversed JJ., concur. 36116. ATLANTIC COAST LINE RAILROAD CO. v. BROWN. April
Decided Thomas, Spann James Shackelford, Sibley, Alston, Miller, Spann, Jr., plaintiff in error. Wm. B. Hewlett, Jr., D. Sam
Hewlett, Barton, Bowden & Dennis, contra. *2 brought in Although plaintiff’s petition the was J. separate both counts were based contention counts, plaintiff’s injuries
that the
resulted from the failure of the rail-
provide couplers
Appliance
road
in accordance with the
to
2):
Act
U. C. A.
“It
be unlawful for
common
shall
engaged
in
haul
carrier
interstate commerce
railroad to
moving
permit
be hauled
used on its
car used in
to
line
couplers coupling auto-
interstate traffic not
with
matically by impact,
uncoupled
and which can be
without the
necessity
men
between the
the cars.”
ends of
special ground
motion for new
first
of the defendant’s
complains
sustaining
plain
erred
that the trial court
in
the
trial
rejecting
offered
defendant
objections and
the
tiff's
im
couplers
worked
the automatic
injured.
mediately prior
time
the
In
to the
special ground,
complains
defendant
the
the
the
second
plaintiff’s objection and
sustaining
erred in
re
sepa
jected evidence that the
on
immediately after
perfect
rated was in
condition almost
injuries.
case,
received
On the trial of the
witnesses
coupling
place,
plaintiff’s injury testified that a
to the
is that
separated. The defendant’s contention
that later the cars
have taken
supposed
where the
been
curve;
previously
had
was on a
track;
straight
a
that the truth of the matter
on
from other cars
(not
coupled together
never -were
that the
is
negligence of
but because of the
couplers),
defect in the
(whose duty
coupling),
was make the
couplers
facing
so’
direction in
adjust
proxi
and that this
impact;
on
would
There
plaintiff’s injuries.
mate
cause of
couplers
go
move
necessary
between the
face
order
direction in which
change hand in order to
previously
uncouplings
a curve when
on
to make
straight track.
made
made were
on
past
In the
been
confusion
to what
there has
considerable
Safety Appliance
Act
railroads
couplers.
reference to automatic
In the
of O’Donnell v.
Sup.
200, 94 L.
Elgin, Joliet &c.
Moreover, the contention defendant that this evidence position would have plaintiff’s injury was solely due negligence to his aligning the couplers, inas- *3 much as the took curve, is merit without since has been held that the fact
on a curve does not relieve the
duty
railroad of the
having
equipped
impact
that
without the neces-
sity
of a man
between
cars.
See,
connection,
this
Hohenleitner v.
Ry.
Southern
Co.,
Pacific
177 Fed.
and
Chicago R. & Ry.
I.
Ray,
P.
The complains that the trial court erred charge upon timely request written any might amount which be plaintiff awarded the would not be sub ject to Federal income tax. appears
This to be a case impression of first in Georgia on and question, parties agree both that outside authorities differ as to whether or proper not this is a charge. jury
The instructed in the event it should find in favor of the plaintiff, it should return a verdict that would com- pensate plaintiff damages for the sustained. In arriving at its verdict of no concern jury attorney’s what fees, tax, expenses income might paid have to be out of recovery. For the court charged to have amount awarded the would not subject be to Federal income tax would been improper. have ex (even including that which was
The evidence question did cluded) demanded two separated, upon impact, other member by taken action one of the least operating train, crew but because at coupler that would with a released, stay impact coupled until as couple upon Elgin, Joliet Appliance Act. See O’Donnell p. 388. There was also supra, Eastern Co,, by the pain suffering, sustained disability, the injuries, coupled. remain the failure the cars to becase of evidence, the verdict new motion for the defendant’s denying err trial. Carlisle, J., Townsend,
Judgment Gardner, P. affirmed. Quillian, Felton, J.,C. dissents. JJ., concur. dissenting. I think C. the court erred J.,
excluding testimony to the effect on the car just prior in question coupled impact at least twice good days and as to four injuries inspected. The relevant on whether knuckles were coupling. no for There is a failure couple on unless least one the knuckles on one of together open. Affolder v. sought Y. C. & St. L. R. U. S. 338 U. &c. Carter Atlanta statement functioned that “The fact that the ma- mean what immaterial,” does not other occasions is *4 in that jority court has ruled that it means. of this or But properly set not. case was not whether the it be conceded that we have in this case. If is the are cars fail couple one time on then impact, is immaterial that times, cry but is a far from saying other that a railroad disproving precluded liability by showing from circum- can stantial evidence which be found to be incon- showing contrary. of witnesses with sworn sistent I if the drawbar was out of line and concede caused the
809 or to fail to the cars came curve, car coupling, liable, railroad would be these but preclude proving still do the railroad from concessions was not liable for the reason there was failure of couple upon impact, failure cars to that such was due to open the failure of the knuckles. If the of the true, it jury believed could have found that the car this to first instance did not and therefore uncouple riding being because the car on which require pushed push type it did not it. The clearly evidence here involved is admissible numerous authorities, among 284, 306, are: Am. Jur. 20 Notes § 5, 7; Wigmore p. 413, 437; 6 Yol. Mc Evidence, II, § (NS) 167 L. Evidence, p. (1), Cormick on 32 R. A. § City (7) (48 1084; Anglin, v. E. 318); Columbus 120 Ga. S. 785 (165 App. (4) Central Ga. v.Co. 45 Ga. 811 Keating, E. S. cited. See also: Union Pac. R. (110 Edmondson, 650); Long 77 N. Neb. 682 W. v. Island Woods 42 R. N. Y. S. 140 Y. 546 N. E. (2), 159 N. 1095); Chicago v. Ill. &N. W. Co. 173 264 E. Gillison, 64 657, Am. St. R. 36145. Mansour v. Fulton National Bank or Atlanta. 1. C. J. Where provision, “Any the note sued on contained part, extension or renewal of this note whole or in the indebted may thereby ness evidenced be made without the consent of or notice any endorser, maker, guarantor, surety, party note, to this affecting lessening and without person,” such provision such binding contained face of the note was (Woodward Lowry, indorser. 159; 74 Byars, Ga. Cantrell v. 66 App. (2), 44; 672 E. 808); Ga. 19 S. 2d 8 Am. Jur. setting up amendment of the defendant the defense that the defendant indorser was released reason an extension of the note was Guaranty Mortgage on motion. stricken Co. National Ins. Life (2) (189 App. 104, 118 603); Ga. S. E. Fricks, J. B. Watkins Co. v. E. Ga. 2d Assuming deciding but payee evidence showed that payment note sued on postponed extended time of right instrument, ordinarily to enforce holder's so discharge (Code § (6)), indorser of the instrument 14-902 since the defendant agreed postponement an extension or that such could be effected