120 Ga. 83 | Ga. | 1904
W. J. Goodwin sued the Central of Georgia Railway Company for damages for personal injuries sustained by him while coupling cars as a yard switchman in the employ of the defendant. There was a verdict for the plaintiff, and defendant’s motion for a new trial being overruled, it excepted.
“ Central of Georgia Railway Company. First Division.
November 30, 1898.
“I fully understand that the rules of C. of Ga. Ry. Co. positively prohibit brakemen from coupling or uncoupling cars, except with a stick, and that brakemen, or others, must not go between cars, under any circumstances, for the purpose of coupling or uncoupling, or for adjusting pins, etc., when an engine is attached to such cars or train; and, in consideration of being employed by said Company, I hereby agree to be bound by said rulé and waive all or any liability of said Company to me for any results of disobedience or infraction thereof. I have Red the above carefully and fuly understand it. ' '
“Witness: John Coleman. W. J. Goodwin.”'
It appears that all of this agreement was printed matter, except the sentence immediately preceding Goodwin’s- signature, which last sentence was in writing. On Dec 27, 1898, the plaintiff’s left hand was badly mutilated, while he was coupling with his hand, and without the use of a coupling-stick, and was - between the cars for the-purpose of making the coupling, and while an engine was attached to one end of the train. The defendant pleaded, as a defense to the action, that the plaintiff was guilty of contributory negligence in violating the provisions of his contract. One of the grounds upon which the plaintiff sought to avoid the obligation of the coupling-stick rule was, that such- a rule, if it ever existed, had been abrogated by reason of its long and continued non-observance, known and acquiesced in by the defendant company. Counsel for the defendant duly requested the court to instruct the jury as follows: “ If you find from the evidence that the use of the coupling-stick was customarily disregarded by the plaintiff and other employees of the company, I charge you that the plaintiff would not be excused from carrying out his contract — if you find that an agreement was made, — unless you should find from the evidence in this case that the non-observance of the rule as to the use of the coupling-stick had been so general, and had continued for such a length of time, after his employment, as to justify the conclusion that there had been a mutual rescission and abrogation
The effect of giving this request, with these words omitted therefrom, was to authorize the jury to find that the custom of disregarding tlie coupling-stick rule by other employees of the defendant, prior to the making of the alleged contract of the plaintiff with the defendant, would be sufficient to relieve him of its terms. So construed, was the ruling of the court erroneous ? This is the sole question presented by the assignment of error. There was evidence of the non-observance of the coupling-stick rule prior to the employment of the plaintiff by the defendant. If the plaintiff and the defendant entered into an express contract at the time of his employment, whereby he specifically agreed, in consideration of such employment, to be bound by the rule not to couple cars except with a stick, and not to go between cars, under any circumstances, for the purpose of coupling, when an engine was attached to them, then we think it is clear that the jury would not be authorized to consider what the custom, with reference to the observance or non-observance of such rule, was prior to the plaintiff’s employment and to the making of that agreement. If the plaintiff was justified in believing that there had been a “mutual rescission and abrogation” of the contract, such belief must have been based upon mutual disregard of the rule .subsequently to the date of the contract. It would not be possible to have a mutual recission of a contract based upon a custom existing prior to the making of the agreement. Otherwise there would be the anomaly of parties having a mutual rescission in advance of the execution of their contract. So far as the plaintiff ■was concerned, it may have been the intention of the railroad company, at the time the contract was entered into, to specifically enforce the rule referred to in the agreement, from its date, regardless of any custom which may have existed prior to that time. In the case of Richmond & Danville Railroad Company v. Hissong, 97 Ala. 187, 13 So. 209, it appeared that the plaintiff, when he entered the employment of the defendant as a switchman, signed one of its regular applications for service, which contained
Judgment reversed.