(After stating the foregoing facts.)
Thе case, as has been said already, arises under the act of Congress filing the liability of interstate railroads for injuries to their employees, and is determinable by its provisions. Under that act the doctrine of respondeat superior applies in favor of an injured servant, and what is known as the “fellow-servant doctrine” is practically abolished. Contributory negligence on the part of the injured servant diminishes, but does not dеfeat, a recovery. The defense of assumption of risk was not abolished, however, except in cases where the servant was injured through the violation by the master of some “statute enacted for thе safety of employees.” The
The second allegation оf negligence is that the derailing switch, or safety switch as it is called, on the side-track, was located so close to the main line that when the train left the main-line track it was thrown off, whereas otherwise it would have continued down the side-track. If it can not be said that this was also an assumed risk, still we think that under all the facts disclosed there, was no negligence on the carrier’s part. The location of this derailing switch was a сondition, and not a cause, of the injury. It waé certainly proper for the company to have this derailing switch in the side-track, in order to protect its main line from cars left on the side-track. It was not locаted so close to the main line as to interfere in any wise with the operation of trains thereon, unless some act of wrong on the railroad company’s part or on an outsider’s part had changed the switch. But for some such thing, the train on which the plaintiff’s husband was working would never have .entered this side-track at all, so as to be in range of this derailing switch, and, therefore, when we come to consider its part in bringing about thе death of the decedent, we are first confronted with the question as to what was the cause of the decedent’s being in range of this switch at the time he was killed; and, on looking to the cause', we find that it was the wrongful act of some one in turning that switch. As we attempted to point out in Atlantic Coast Line Railroad Co. v. Daniel, 8 Ga. App. 775 (70 S. E. 203), the law regards as the proximate cause that thing or combination of things in which, or through which, the normal course of prudently conducted affairs is violated. In a remote sense, the location of
The speed at which the train was running was likewise either a condition or a remote cause. There was nothing inherently wrongful in this rate of speed; it was ineffectual to produce any injury. The real cause of the train’s speed becoming dangerous was the turning of the switch (as the jury has found) by the trespasser. According to every rule of human experience, the wreck would have resulted just as it did if the train had been running at the schedule speed of thirty miles an hour instead of thirty-five or forty, as it was running. It is impossible to see how it can be seriously contended that the injury was brought about in any wise through any excess of speed over the normal, even if we regard the absolute schedule of the train as the normal, and regard thirty-five or forty miles an hour as an abnormal rate. We are not to be understood as holding that any excessive rate of speed was shown in this ease, but are merely attempting to show that if an excessive rate of speed was shown, the wreck and the injury did not result from that cause.
As to the аllegation of negligence to the effect that the defendant did not equip its switches at this point with what is known as distance signals (a description of the operation of which is set forth in the excerpt quoted аbove from the plaintiff’s petition) : it was shown that nowhere on the defendant’s lines were any such switches, and that the plaintiff’s husband had been working on that road as a fireman and going over the very track in question for more than
The allegation of negligence as to the condition of the rails and ties on thе side-track was probably so far rebutted by the' proof as not to make it a jury question; but irrespective of that, these things stand on the same footing juridically as does the situation of the derailing switch which has alreаdy been discussed in detail. We conclude, in charging the jury, that the court did not err in submitting only the two questions: (1) as to whether some employee of the company left this switch open, or whether it was opened by a trespasser; and (2) whether the company’s employees were negligent in leaving it unlocked so that a trespasser might open it. As to the submitting of the second question to the jury (that is, as to the company’s negligence in leaving the switch unlocked) it may be remarked that the court probably gave the plaintiff a benefit to which he was not entitled. As to persons to whom the railroad company owes the duty of extraordinаry care and diligence, or the duty of affirmative protection (such as passengers), it may be and probably is true that a railroad company could be held liable for leaving a switch unlocked, whereby а trespasser was enabled to throw a switch and wreck a train; but as to other persons, we doubt if in such a case liability can be upheld. “The defendant’s negligence may put temptation in the way of anothеr person to commit a wrongful act, by which the plaintiff is injured; and yet the defendant’s negligence may be in no sense a cause of the injury.” 1 Sherman & Redfield on Negligence (5th ed.), § 25, quoted approvingly in Andrews v. Kinsel, 114 Ga. 390 (
Two rulings on evidence, relating to' the issue of fact as to whether the alleged trespasser, Clarence Agnew, threw this switch or not, are complained of. The first is that the court, on the direct examination of John M. Nichols, the shеriff of the county where the wreck occurred, was allowed to answer that when he arrested the defendant, he carried him up to the scene of the wreck and “went up to the switch where he claimed tо have broken the lock loose.” Upon objection generally to this testimony, the court made the following statement: “I think anything he stated which caused the sheriff to make the search is admissible. I will leave it in for thе present — anything that was said to him about finding those things. I understand you are objecting to all of it. This evidence don’t go in as evidence of the truth of the statement he made that he did this thing. It goes in connection with the conduсt of these people in finding those things.” Thereupon, Mr. Smith, of counsel for the plaintiff, replied, “Your honor does not admit it to show he broke the lock on the switch?” The court answered, “No;” whereupon no further objection to the testimony was interposed. This, of course, presents no ground for assignment of error in this court, even if the ruling of the court were in-(oi-rect; but the court’s ruling was not incorrect.
The other assignment of error is that the court erred in admitting the testimony of Clarence Agnew, it appearing to the court that Agnew was at the time a convict for life, and that under the laws of South Carolina, where he was convicted, he was incompetent to testify as a witness. Able counsel for the plaintiff in error frankly concedes in his brief that personally he does not regard this exception as being well taken, but adds: “But, as counsel frequently mаke mistakes, if we are mistaken, we wish the benefit of
Judgment affirmed.