136 Ga. 846 | Ga. | 1911
R. W. White brought suit against the plaintiff in error to recover damages for personal injuries alleged to have been' sustained by him on October 4, 1906. The plaintiff alleged, that on the date named he was in the employment of the defendant company as conductor; that he had never practiced as motorman, and was not skilled in the operation of a motor or well acquainted with the method of operating the same; that a car.was due to leave Atlanta at 1:4o in the morning, which went out Decatur street, and out to the Soldiers’ Home junction; that there was no motorman to run the car, and the plaintiff was ordered by one of defendant’s agents, acting with authority of the superintendent, to run said car both as motorman and conductor; that plaintiff had never been warned of the perils of running a car as motorman, nor been given sufficient opportunity or practice to run a car with skill as motorman, or to know or understand the speed of a car; that while proceeding out Decatur street, at the rate of five or six miles an hour, plaintiff reached a switch or turnout from the Decatur street track at the intersection of Piedmont avenue; that this Piedmont avenue track is not a track used by regularly scheduled cars, but rised at irregular intervals, and'by construction cars mostly, going to defendant’s power-house to load or unload equipment, and the like; that, under the defendant’s practice and custom, the switch at the intersecting turnout at Piedmont avenue was not one at which motormen running on the Decatur street main line were required to stop and to turn it before proceeding, but, being required to remain turned to the main line, motormen could run over it upon the assumption that the same was always turned to the main line; that, upon the occasion and night in question, a car of the defendant in charge of defendant’s employees had used said switch in going into said turnout, but had negligently failed to turn the same back to
The defendant filed a general demurrer, which was overruled, and defendant excepted. Upon the trial of the ease a verdict was rendered against the defendant; the court having overruled a motion for a nonsuit, made at the conclusion of the plaintiff’s evidence. A motion for a new trial was overruled, and the defendant excepted.-
When it is remembered that the plaintiff himself was in sole and complete control of the car; that he was running it over a track with which he was familiar, over a switch of which he knew the character and location; that he ran his car, without decreasing his speed, into this switch, — there can be but one .conclusion reached, and that is that the plaintiff himself, by a failure to exercise due care and caution, brought upon himself the injury of which he now complains, but of which he has no ground of complaint as against the defendant company. There are other facts in the record strongly tending to show that the plaintiff himself was grossly negligent in running into the open switch, but we have stated only those facts which are uneontroverted and came from the plaintiff or his own witnesses; and under them the plaintiff is not entitled to recover, and the court erred in not granting a new trial upon that ground. Having so held, it is unnecessary to deal with the special assignments of error contained in the motion for a new trial.