78 Ga. 749 | Ga. | 1887
This was a suit brought by the widow of Killian, who was in the employment of the Port Royal and Augusta Railway Company, and who was directed to accompany a train and to deliver a load of rough lumber, slabs, etc. at the Sibley Mill, a point on the' Augusta and Knoxville Railroad. The alleged carelessness on the part of the defendant consisted in the. defective construction of a certain curve at a point on the streets of Augusta, and over which this train had to pass. It seems from the evidence that the deceased, the plaintiff’s husband, was riding on the end car of the train, accompanied by three or four others, who were bound upon the same mission, and that at that curve this car. was derailed and he was killed. This was substantially the case made by the plaintiff, as shown by the facts in proof. Upon the conclusion of the testimony for the plaintiff, a nonsuit was awarded.
There was a dispute as to the precise portion of the front car occupied by the plaintiff’s husband at the time of the casualty which resulted in his death. There was also a dispute as to the relative safety of his position, whether it was less safe there than it would have been on other portions of the train. It was insisted that he was in the most dangerous position that could have been taken on that train. It was further contended that he was an employé of the Augusta and Knoxville Railroad Company, for the purpose of transacting the business in which he was then engaged, and that in order to maintain this action, he must have been free from fault.
But whether he was a co-employé or not with those in charge of the train, his widow was entitled to maintain this action against the defendant, unless he was guilty of negligence; and negligence was a fact for the j ury to pass upon in that as well as in other cases. Although there was a conflict of testimony on that point, the jury were not permitted by the court to pass upon the question; and if upon no other ground, the judgment awarding the non-suit must be set - aside, and a new trial granted, for that reason. The plaintiff has not had her rights.
The act of the 26th of September, 1883, authorizes the receipt and delivery of interrogatories at any time, either in term time or in vacation. It seems to have been the main purpose of this act, to enable the interrogatories to be deposited in the clerk’s office in vacation. The first se ction of it requires that the postmaster at the office to which they are directed shall, immediately upon its reception, endorse upon the package the fact of its reception by due course of mail, and at once deliver the package to the clerk of the superior court. The second section prescribes the duties of the clerk, which are to endorse upon the package the person from whom and the time when he received it; and if received in vacation, to file it away, with the seal unbroken, until the term of the court. There is, however, a proviso in the act allowing it to be opened at any time by consent in writing of counsel for both parties. Acts of 1882, 1883, p. 102.
¥e think that there was a substantial compliance with this act. The reception of the interrogatories by due course of mail, and the time of the reception, was evidenced by the Official stamp of the postmaster, put upon the package at the post-office, whereby it appeared that the interrogatories had not been tampered with or violated. The delivery of the package to the clerk by the mail-carrier, the assistant of the postmaster, required by law to act in his behalf and to perform that duty, was shown by the certificate of the clerk. And to render the act of any value in cities where the delivery is made by carriers, such a delivery and such memorandum of the arrival of the package, must be deemed a sufficient compliance with its provisions. But be this as it may, the parties, by their consent in writing, agreed that the package should be opened; and this, we think, was a waiver of any objection to irregularities in these respects, apparent on the outside of the package.
Upon the two grounds stated, we reverse the judgment of the court below.
Judgment reversed.