132 Ga. 189 | Ga. | 1909
The plaintiff is the widow of Charles J. Jones. She sued to recover damages for his death, alleged to have been caused by the negligence of the'employees of the defendant company. He was in the employment of the defendant as a locomotive engineer, and was running on the division of its road that extends from Thomasville to Montgomery. The locomotive he was running was pulling an extra freight-train, designated as No. 708. At the time, the movements of his train were controlled by the train dispatcher at Dothan, Ala., a station between Thomasville and Montgomery. On the morning of the day of his death he received an order that his train would run extra between Thomasville and Climax, Climax being the first station west of Bainbridge. At Climax he received a second order that his train would run extra between Climax and Hron City, with the instruction that he would look out for work-trains. He did so, and rgached Bainbridge on this order, arriving in Bainbridge at or about 11 o’clock a. m. He stopped his train in Bainbridge at the usual place, after placing two cars on the side-track, which left him some 32 cars in his train. The conductor of this train registered the time of arrival at 11.15, and leaving time at 11.20. The operator at Bainbridge changed the time of leaving, as registered by the conductor, from 11.20 to 11.24. Between the depot at Bainbridge and the drawbridge over Mint
It is insisted,» also, that the portion of the charge complained of in the ground of the motion for a new trial now under consideration was error on the further ground, among others, that it in effect placed on the defendant the burden of proving, not only that plaintiff’s husband violated the rule referred to, but also that such violation contributed to his death, whereas the correct rule of law was, that, when defendant proved that plaintiff’s husband violated the rule of the defendant, the burden was on the plaintiff to show that such violation did not contribute to her husband’s death. It would seem that the charge last quoted inferentially states the proposition in effect as it is insisted to be, in the criticism upon this charge, but in a subsequent portion of the charge the court positively and without ambiguity, and without leaving room for inference, stated the rule upon this point as clearly as could be desired by the defendant, using the following language: “Before an employee can recover from a railroad company he must be' free from fault; and if he is guilty, while in the discharge of his
Judgment affirmed.