68 Ga. 228 | Ga. | 1881
George R. Dorsey sued the Augusta & Summerville Railroad Company, claiming $15,000.00 damages for injuries sustained, as he alleged, by reason of the unskillful, careless and negligent running of the engine and cars, in that by the said carelessness and negligence he was run over and his left leg so mashed and mangled that its amputation was necessary. That, as a consequence thereof, he suffered great bodily pain, and was put to large and heavy expenditures.
The defendant pleaded the general issue and a special plea, setting forth that plaintiff had been employed by the company on account of his experience as an engineer to act as flagman, and to take charge of the engine engaged in transferring passengers and freight through the city of Augusta, and to and from the several depots thereof. That at the time he was injured he had the sole and entire management of an engine rented by the company from the Georgia Railroad Company and manned by their employés. That when he was injured he was on the pilot of the engine, by his own voluntary act, and while the engine and cars were in motion he uncoupled the engine from the cars, when by reason of the separation he was unable to retain his position, and fell in front of the engine and was run over. That there was no pressing emergency requiring the act to be so performed, and that his action was one that no reasonable man would have done.
During the pendency of a former trial in the case, plaintiff filed an amendment to his declaration which the court allowed, and to the filing of which the defendant filed exceptions pendente lite.
This amendment was as follows:
“That besides the unskillful, careless and negligent running of said engine and cars, the said defendant is further guilty of negligence in this, that the drag-bar on the pilot of the engine then and there being used, upon which your*231 petitioner was standing, in the due and proper discharge of his duty, and without fault upon his part, was defective,which defect was not known to your petitioner at the time of the injury aforesaid, and not discoverable by him in the reasonable and ordinary exercise of diligence in the course of his duty, and that said defendant was careless and negligent in not discovering said defect, as it was its duty to do, or in failing to remedy the same.”
The interlocutory exceptions filed thereto, and allowed, were as follows:
“Because the court allowed the plaintiff to amend his declaration setting out defective machinery as the cause of the accident, defendant’s attorney objecting to the amendment as setting out a new and independent cause of action, and as not setting out the exact defect of the machinery which caused the injury, nor any knowledge of such defect.”
When the declaration was amended, defendant amended its plea as follows :
“That the engine and engineer were employes of the Georgia Railroad and Banking Company, and hired by ihis defendant from said road to do this work for them, which plaintiff was employed to direct and control. That plaintiff knew this from the time of his employment, September 22d, to his injury, October 13th, 1877, daily and continuously used the same engine and the same employés, which were under his sole control.
“That if any of the machinery was defective and thereby caused plaintiff’s injury, which defendants deny, it was sudden and without the previous knowledge of said employés of the Georgia Railroad and Banking Company, or of this defendant, and happened after previous use the same day by plaintiff without objection on his part.”
Upon the last trial, defendant filed another plea as follows:
“That since the commencement of this suit and the amendment made to plaintiff’s declaration, made May*232 6th, 1879, to which interlocutory exceptions were filed July 1st, 1879, hy this defendant, the plaintiff instituted, September 9th, 1879, his action against the Georgia Railroad and Banking Company for damages, setting forth the same cause of action which is set forth in said amendment of May 6th, 1879, the declaration in which case, as of file in this court, is here to the court shown, which it prays may be inspected by this court, and if found to be the same cause of action, that plaintiff be required to elect which corporation he. will hold responsible, and dismiss his cause of action as to the other for the same injury before this case shall proceed further.”
This, on demurrer, was stricken, when defendant amended its plea, as follows:
“ That by ordinance of the city council of Augusta, confirmed by the act of the legislature, they are authorized to use locomotive power for the movement of passenger, baggage and freight cars on their tracks. That having no engines of their own, they entered into a contract with the Georgia Railroad and Banking Company, which, along with other things, agreed to furnish to these defendants, for local work other than through transportation, an engine free of charge, in return for which these defendants were to do, on their own track, all the local hauling of said railroad free of charge.
“ That pursuant to this contract, the engine set forth in plaintiff’s declaration was furnished to this defendant for local work, from day to day, and was, by the plaintiff, as the sole agent of this defendant in that behalf, and employed for the purpose of personally controlling the movements thereof, accepted from day to day from the said Georgia Railroad and Banking Company, to-wit: from the date of 'his employment, September 22d, 1877, until his injury, October 13th, 1877. That on the day of the injury the plaintiff failed, as the agent of this defendant, to inspect the condition of the engine, but received and took. the control and direction of the same, and that it*233 was when thus under his direction and entire control that he, while riding on the pilot thereof, of his own free volition, undertook to uncouple, when no pressing emergency existed, the engine from the car in front of it, which it was pushing forward, the train being still in motion at the time of the accident. That this act, defendant avers, was done at the personal risk of the complainant himself, and contrary to instructions. That if any negligence was committed, the plaintiff contributed thereto, and that if anything was omitted which should have been done, it was by the plaintiff himself.”
Upon the declaration and pleas as herein set forth, the parties went to trial, and, under the evidence and charge of the court, the jury retuined a verdict for the plaintiff for $11,000.00. The defendant moved for a new trial, upon the grounds set out in the record, which was overruled by the court on each and every ground therefor, and the defendant excepted.
Where there are two suits pending by the same plaintiff against the same defendant, upon the same cause of action, commenced at the same time, the defendant may require the plaintiff to elect which one he will prosecute.
One of the issues of fact in the case was, whether he had obeyed the instructions which had been given him ; and, of course, being a witness, he should have been allowed to state how that was. It was competent for the defendant to put it in issue, and to introduce testimony to the contrary, and why not equally so for the plaintiff?
The objection to the admissibility of this model, as appears by the record, was, that it was ex parte, and that there was no notice given of the intention to take a model of the pilot and drag-bar, and not because it was not shown
The conduct of the engineer in charge at the time of the injury being under inquiry, and the question being whether he might or might not have stopped his engine in time to prevent the damage to the plaintiff, this witness was allowed to give his testimony on that subject, and byway of illustrating what could be done as to stopping an engine, stated as an engineer, what he knew could be done, by his having done it, not with an engine simply, but with an engine and train of cars. This certainly went to illustrate the issue not upon theory alone, but upon actual knowledge, and was therefore admissible.
The rule upon which employés generally work, was not a matter involved in this investigation touching the special work of this employé, and was therefore inadmissible, as I think.
This objection appears to be founded upon the fact that the witness was a conductor. We are unable to appreciate the ground of the objection. Certainly one who is in au
One of the grounds upon which the plaintiff based his right to recover in this case was, that the machinery with which he was to do his work was defective. It was undoubtedly the duty of some of the agents or employésto look after this matter.. The parties were at issue as to whether there were any specific instructions given to the plaintiff; if there were, then he was bound by them; if none, then the general duties appertaining to the position were all important. For if it were the duty of the plaintiff to inspect the machinery for the company as its agent or employé, and he failed to do it, then he was not without fault, and therefore would be entitled to no recovery.
If the theory of the plaintiff was true that he had no special instructions, and under the general duties of the place this inspection did not devolve upon him, then the testimony was important and in that view admissible. Otherwise it would not be.
The law is that experts may give their opinions upon the matter under investigation, where such opinions are admissible, without giving any reason for their opinions; others than experts may swear to their opinions or belief, giving their reasons therefor. The testimony of this witness was ruled out because he was not an expert. Upon any question upon which an expert is allowed to give his opinion without a reason, one who is not an expert may give his with his reasons. If, therefore, the testimony of those who claimed to be experts on the matter in controversy was admissible, then, as a necessary consequence, the testimony of this witness was. The admission of one was the admission of both, the exclusion of one was the exclusion of the other. Both or neither was the law.
But it is said that this was only a technical error, and not such a one as to justify the grant of a new trial, and in support of this view, the case of Howell vs. Howell, 59 Ga., 145, is relied upon. We recognize and reaffirm the rule there laid down, but in our judgment this is a very different case from that. This was the only wholly disinterested witness to the accident; the vital question being, was the plaintiff without fault in stepping off from the platform car, where he was perfectly safe, over upon the open bars of the pilot, and that too while the engine was in motion, and where the miscalculation of an inch in placing his foot on, instead of between, the bars of the pilot, was to be passed upon by the jury. And after the plaintiff and certain of his witnesses had expressed their opinions, that it was perfectly safe to uncouple from the pilot, the train being in motion, it was certainly but even-handed justice to have allowed this witness to have given his
We are unable to say how far the opinion of such a witness as this, who had had an observation of seven years as to the way in which this work had been done, would have affected the verdict of the jury. And if we were, it would be improper to state it. But most assuredly the defendant should have had the benefit of its effect and weight with the jury, whatever that might have been.
The complaint is, not that this appeal was illegal, but that its effect was electrical, and produced a verdict founded not upon law and fact, but upon sympathy and sorrow. We cannot recognize this as a good ground for a a new trial. Impassioned appeal, and persuasive eloquence are but the lawful weapons of forensic conflict, and undoubtedly have been employed from the time in Greece when Mars himself was tried for murder by a jury of twelve men and acquitted by an equality of votes, in the first trial mentioned in history by a jury of that number. 3d Modern Rep., preface, page 9. On the whole, therefore, we think that there should be a new trial in this case.
Judgment reversed.