87 Ga. 402 | Ga. | 1891
Lead Opinion
Besides the above facts, concerning which we think there can be no dispute, we desire to allude briefly to some other portions of the testimony. Mr. Kent, the engineer, himself testified that he had never recognized the place where this culvert was located as a dangerous one, and that it was as safe here as any place on the road, according to his knowledge. The train was due at the place where the accident occurred about 3 o’clock in the afternoon, but probably reached there a little after that time. The evidence does not accurately show what time elapsed between the washout and the arrival of the train. This time, as we gather from a consideration of the testimony of all the witnesses whose evidence bore upon this question, was somewhere between thirty minutes and two hours and a half.
This ease was before this court at the October term, 1889, and is reported in 84 Ga. 351. The last headnote of that decision is in the following language: “ The pressure of the case is upon the question whether the company was negligent in not knowing of the wash
The objection to this charge is, that it lays great stress upon the amount of time elapsing between the washout and the accident, without calling attention to other facts and circumstances which were of as great importance as the mere length of time intervening between these two events. We have already intimated in the first division of this opinion what some of these facts and circumstances were, and will again refer to them in suggesting what, in our opinion, would have been a proper addition to the charge. The effect of the charge quoted was, we fear, to exclude from the consideration of the jury the real defence of the railroad upon this most important branch of the ease. It is true the charge does, in effect, say in more than one place that if the railroad did not have time, “by the exercise of ordinary and reasonable care and diligence,”
Rule 9 of the railroad company, which was put in evidence by the plaintiff, is as follows :
“Should a section-master have reason to apprehend washes or injury to the track, bridges or culverts, by rain or storm or flood, he must, whether by day or night, pass over his section fully one hour preceding' the passage of any regular train, or repair to the place known to be in the most danger.’’
Under this rule, the section-master is only required to pass over his section one hour preceding the passage of trains when he has “reason to apprehend washes or injury to the track, bridges or culverts, by rain or storm or flood.” Holding the company by its own rule, and taking into consideration the real contest in this case as made by the pleadings and the evidence, it becomes apparent that the most important question to be determined was, whether or not there was reason to apprehend that this washout would occur. We think, for the reasons above given, this question was not properly submitted to the jury.
A ruling of the Supreme Court of Minnesota, in the case of Gates, administratrix, v. Southern Minn. Ry. Co. (28 Minn. 110, s. c. 2 Am. & Eng. R. R. Cases 237), so aptly concurs with and illustrates the views we have above endeavored to express, that we quote, though somewhat lengthy, the charge given by the trial judge, and the remarks concerning it made by the reviewing court. The charge given was as follows: “It is the duty of those who use hazardous agencies and instrumentalities to control them carefully, and to adopt every ordinary known and usually approved invention to lessen the danger, and to guard against every ordinary probable danger by such means as ordinary prudence would suggest or dictate. Railroad companies are bound
Referring to this charge, the Supreme Court held that, “ notwithstanding the court also in general terms charged the jury that the degree of care and prudence required of the defendant in the case was ‘ due and ordinary care,’ ‘reasonable care,’ and ‘ordinary prudence,’ the charge, as a whole, was erroneous, for the jury may have understood from it that it was the absolute duty of the defendant, without regard to the degree of care used by it to effect the pm’pose, to make all necessary guards against danger caused by ordinary storms, and to guard against land-slides, washouts and obstructions which might endanger the lives of passengers and employees, and to keep its road in suitable and safe repair.” In addition to what appears in the head-note just quoted, Gilfillan, C. J., in the opinion observes, in effect, that under this charge, no amount of care and
The views herein expressed, and supported by the above authority, will make apparent, we think, the correctness of the proposition announced in the 5th headnote. Judgment reversed.
Dissenting Opinion
dissenting.
On a previous writ of error (see 84 Ga. 351), the right of the plaintiff to recover was resolved, and as I think correctly, into a question of fact for decisiou by the jury. IJpon the second trial, the court committed no error of law which affected that question on its substantial merits, and while the verdict may or may not be correct, there was evidence to support it. I believe the presiding judge did not abuse his discretion in denying a new trial. For this reason I dissent from the judgment of reversal.