Bowers v. Southern Railway Co., 10 Ga. App. 367

Bowers v. Southern Railway Co.

10 Ga. App. 367 | Ga. Ct. App. | 1912

Powell, J.

(After stating the foregoing facts.)

The 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 defeat, 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 the safety of employees.” The *371questions of negligence and of proximate cause are still to be determined according to the generally existing rules on that subject. Taking up now the allegations of negligence which the court eliminated from the consideration of the jury, for the purpose of seeing whether the court properly eliminated them: The first is that the defendant was negligent in that it had so constructed'its track that the approach to the switch was around a curve and through a deep cut, which prevented the engineer and fireman from seeing the lights on the switch-stand, in order to detect that the switch was turned and to slow up and keep from running into the side-track. The decedent had been running over this same track for more than two years. It seems plain to us that as to this he had assumed the risk.

The second allegation of 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 condition, 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 located 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 the 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 *372this derailing switch (if its location could have been in any sense regarded as wrongful) may be regarded as a cause of the injury, but the proximate cause was the wrongful turning of the switch between the main line and the side-track. The court submitted to the jury the question as to whether the defendant was guilty of any wrong or neglect as to this switch between the main line and the side-track being turned;-and the jury, having found that it was guilty of no wrong or negligence in this respect, could not have found that it was guilty of actionable wrong merely because this derailing switch was situated at the particular point at which it was, rather than at some other point in the side-track. There may be concurrent proximate causes, of course, but the distinction must always be kept in mind between concurrent causes and mere conditions upon which the proximate cause operates.

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 allegation 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 above 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 *373two years. The court properly held that even if this were a negligent deficiency, the decedent had assumed the risk.

The allegation of negligence as to the condition of the rails and ties on the 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 already 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 extraordinary 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 a 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 another 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 (40 S. E. 300, 88 Am. St. R. 25). The general doctrine is laid down, in the course of the opinion in that case (Andrews v. Kinsel, supra), that where there has intervened between the alleged negligence of the defendant and the damages sustained by the plaintiff an independent illegal act of a third person, producing the injury, and without which it would not have happened, and which is the direct proximate cause of the damage, no liability exists. We have adverted to this doctrine more especially as the basis for saying that in this case the one fact upon which the whole question of liability turns is whether this train was wrecked through the criminal act of a wilful, conscious trespasser who turned the switch, or from some other cause. This question *374was squarely submitted to the jury, without any error in the charge as to it; and the only exception as to testimony bearing on this point of the case is, as we shall presently show, not well taken. If this point was correctly presented to the jury and decided by them, the judgment refusing a new trial should not be reversed, irrespective of whether the numerous exceptions to rulings on evidence relating to other phases of the case are well taken or not; for if error as to any of these matters be established, it would at once fall into the category of harmless error.

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 sheriff 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 to 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 the 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 conduct 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 make mistakes, if we are mistaken, we wish the benefit of *375it.” The opinion of counsel as to this matter is eminently correct; his objection was not well taken. Under the law of this State a person convicted of a felony is á competent witness; the fact of his conviction only goes to his credit. Civil Code (1910), § 5858. Of course, the competency is determined by the law of the forum.

Judgment affirmed.