111 Ga. 528 | Ga. | 1900
It appeared from the petition of Edwards, who instituted an action to recover damages for a personal injury which he sustained, that he was an employee of the Central of Georgia Railway Company as brakeman on a freight-train at the time he received his injuries, which train consisted of an engine and about fifty freight-cars, besides one caboose. The plaintiff alleged that on the day he was injured the train was running forty minutes behind its schedule time, because of a defective driving-rod, and of the large number of cars which were attached to the engine; that, owing to its delayed schedule, the train upon which he was employed was forced to enter a. siding at Brewer, a station on the Central road, to clear the main line for the passage of a passenger-train going in the same direction as the freight-train; that sufficient side-tracks for the passage of trains had not been provided, because the east switch of the side-track had been temporarily removed, and it was necessary for the freight-train to pass entirely beyond the west switch of the side-track and then back on to such siding; that as the freight-train was passing over the west switch, at about the speed of seven or eight miles per hour, the plaintiff was.standing on top of a car about ten or twelve car-lengths behind the engine; that the conductor of the train was also standing on the top of a car a few car-lengths behind the plaintiff ; that when the train was passing over the west switch, the conductor, wishing to put his train on the side-track as soon as possible, in order to avoid a collision with the passenger-train which was following, ordered the plaintiff to jump off the freight-train for the purpose of changing the switch as soon as it became clear; that in obedience to the order, the plaintiff (alleg
The defendant answered, denying each and every allegation of every paragraph of the petition. The plaintiff, after having shown the fact that he was very seriously and permanently injured, testified, that he was employed as brakeman on the freight-train, which had about fifty cars, half of them loaded ;
A number of the rules governing employees of the Central-Railway Co. were introduced ; and the plaintiff closed his case. At the conclusion of the plaintiff’s evidence, the defendant-moved the court to grant a nonsuit. The motion being overruled, the defendant excepted pendente lite, and had his bill of exceptions certified and put on record. The case proceeded to trial, and a verdict was rendered for the plaintiff. The defendant made a motion for new trial on several grounds, which was overruled, and it excepted, assigning error to the ruling of the court in refusing to grant the nonsuit, and in overruling its motion for a new trial.
We think the court erred in overruling the motion for a nonsuit. Under the allegations made in the petition, the neg
However logical these deductions may be, they fail to establish a right of recovery in the plaintiff for the injuries which undoubtedly he sustained. To constitute an actionable tort there must be damage to the plaintiff and negligence by the defendant causing the injury. Central Railroad v. Freeman, 75 Ga. 331; Mayor and Council of Macon v. Dykes, 103 Ga. 847. See also Central of Georgia Railway Co. v. Price, 106 Ga. 176, and numerous cases cited in the opinion on page 178. The direct and proximate cause of the injury which the plaintiff sustained was his jumping from the train; and if he is entitled to recover damages from the defendant company therefor, it is because of some negligence on the part of said company which caused the jump from which the injury resulted, or negligence in not protecting the place where in fact he did jump. As we have seen, it is not charged in the petition that the railroad company was, through its conductor, negligent in directing the plaintiff to jump from the car at the time he did. Therefore, discarding these remote causes so particularly set out in the petition, in themselves not giving to the plaintiff a right of action, there must remain but one question, and that is, whether or not the company was negligent in not protecting or blocking the frog in which the foot of the plaintiff became fastened, and from which fastening his serious injury was a consequence. By the Civil Code, § 2611, it is declared that the master is bound to exercise ordinary care in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. In the case of
Judgment reversed.