Krogg v. Atlanta & West Point Railroad, 77 Ga. 202

Krogg v. Atlanta & West Point Railroad

77 Ga. 202 | Ga. | 1888

Blandford, Justice.

1. The question presented by the original bill of exceptions and record is, was the court right in granting a new trial upon the ground alone of the admission of the statements. of Cecil Gabbett in evidence against the defendants ? One of these statements was, when Gabbett was at West Point asleep upon the train en route to Montgomery, he was informed by the conductor of that train that Krogg’s train had been wrecked, and of the place where it had been wrecked. Gabbett remarked, “ that he had told the road-master that those curves were too high.” Gabbett was the general manager of both roads, with his residence at Montgomery; he had full control of the roads, also of all the employés for the cars, engines and the track; there was no officer above him in this regard; it was his duty to know everything about the road and to keep everything straight. Gabbett went to the wreck, and after examining as to its cause, and while pursuing his investigations, he went to the plaintiff, who was the engineer of the train when wrecked, and who had been seriously hurt, and asked him, “what, in his opinion, caused the wreck?” Krogg told him, “he thought it was a broken rail, but was not positive.” Gabbett replied, “ You are mistaken.” Krogg then said, “As you have made an examination,” since the wreck, what, in his opinion, caused the wreck? Gabbett said, “ It had too much elevation on the curve.” Krogg then asked, “ Are you positive about it ?” Gabbett said, “ Yes, I know it. Hereafter I will remedy this, and have no more such accidents from that fault.”

This court is of the opinion that these admissions or *213statements of Gabbett, the chief manager of the property, road-bed, etc. of the corporation, were properly admitted, under the facts of this case. He was the alter ego of the corporation in this matter. His statements as to the condition of the road were made while in the line of his duty, it being his business to know the condition of this road, and upon being informed of the wreck by an agent of the road, what he then said will be considered as having been said dumfervet opus; the work was then hot with him and his statements then as to the cause of the accident were virtually the statements of the corporation itself. It was further admissible as showing knowledge of the corporation as to the improper construction and condition of the road before the accident. The statements of Gabbett to Krogg as to the cause of the wreck were admissible, not only for the reasons already stated, but upon the ground that they were part of the res gestae. It was Gabbett’s duty to investigate the cause of this disaster, and while he was pursuing his inquiries actually thus engaged, he made the statement to Krogg already set out. This was virtually the ruling of this court in 34 Ga. 337; 56 Ga. 276. Imboden vs. Etowah and Battle Branch Mining Company, 70 Ga. 88 ; Edwards vs. Cotton States Life Ins. Co.. 74 Ga. 220; Bobbins vs. Pyrolusite Manganese Co., 75 Id. 450; Georgia Railroad Co. vs. Smith, Gov., 76 Id. 634.

We do not mean to say that the general rule is not as that contended for by the able counsel for plaintiff in error, to-wit, that a railroad company is not bound by the admissions of an agent as to an occurrence after the same has taken place, but we think that that rule is subject to the qualifications already stated. If the agent be in the performance of a duty of the corporation, while thus performing that duty, what he says as to any defect in the structure of the road is res gestae as to such defect, and his admissions are the admissions of the corporation. So we think that these statements of Gabbett were properly admitted in evidence by the court below, and that the court *214erred in granting a new trial on the ground that there was error in the admission of this evidence, and the j udgment is reversed.

2. The cross-bill of exceptions raises many questions, and it is insisted that the law, as declared by the Supreme Court of Alabama, is the law of this case, although that law be the common law. What the decision of that court may be on the question of the liability of the master for an injury done to a servant by the negligence of another servant, and who are fellow-servants, is left in doubt by. the decisions of its Supreme Court. See 42 Ala. 672; 61 Id. 554; 67 Id. 18. In these cases, that court seems to rule that Gabbett is not a fellow-servant with Krogg, the engineer, and we think that this view is correct, although in 59 Ala. 251, the contrary is held, but we are not bound by the interpretation of the common law, as made by the courts of Alabama; as to what is the common law on this subject, this court is not only competent to decide, although the accident occurred in Alabama, but it is its duty to decide, the common law being the same in both jurisdictions. As to the construction which the courts of that State place upon its own statutes or other ‘local laws bearing on the case, we' will follow such construction. And this was the ruling of the Supreme Court of the United States in Hough vs. The Texas Pacific Railroad, 100 U. S. Rep. 214.

3. The decisions of this court have been uniform, that a fellow-servant is one employed about the same work with the servant injured, and whose negligence caused the injury to the servant complaining. See 30 Ga. 146,150, in which Judge Stephens takes a philosophical view of this question, and ruled as this court did in Bain vs. Athens Foundry, decided two terms ago, 75 Ga. 718; but the case cited in 100 U. S. is a learned and able opinion and is absolutely decisive of this question. If any doubt formerly existed as to who were fellow-servants, that decision resolves the doubt.

4. Again, if a railroad corporation know of the improper *215construction of its road-bed, and that' the cross-ties and other superstructure are rotten, or if the same be known to the officers of the road who are charged with the duty of repairing the same, this would be notice to the corporation ; and if the corporation fail to make suitable repairs, this is negligence on the part of the corporation, and it would be liable for any injury that might occur on that account to any one, whether he be a servant of the corporation or not, notwithstanding the failure to repair was owing to the negligence of the general manager and superintendent of the road or the road-master or section-boss.

5. It is insisted that, as this injury arose in Alabama, the period of the statute of limitations is that prescribed by the statute of that State. We do not agree with this view of the counsel for the defendant companies; it would seem that at this day it would require neither argument nor authority1 to settle this point. The counsel refer to Lacy’s case, 43 Ga. 461, to sustain this proposition. In that case, the injury was the homicide of plaintiff’s husband which occurred in Alabama. That State, by statute, gave a right of action to the administrator of the person killed, but limited the time for bringing the action to one year from the time the cause of action accrued. This court held that the case was barred, it not having been brought within one year. But in the case being now determined, the plaintiff had a right of action at common law, and’the statute of limitations is the ordinary statute which applies to actions for torts. In such cases., the statute of limitations of the place of the forum governs. Townsend vs. Jemison, 9 Howard, 407.

6. It is further contended that the court below committed manifest error in instructing the jury that they i; would be authorized to reduce the damages,” etc., if they see proper. We think that this charge is obj ectionable, in that it turns the jury loose to do as they pleased, and we think the court should hold them well in hand; but we held in Georgia Railroad vs. Pittman, 73 Ga. 325, that’ such *216a charge as this was cured by other portions of the charge, in which the court confined the jury to their duty as to their finding. Immediately after the charge complained of follow two charges by the court, the same being requests of defendants’ counsel, and these requests corrected the looseness of the charge complained of; so we think no harm resulted from the charge. The judgment of the court in refusing to grant the new trial upon the grounds taken in the cross-bill is affirmed.

Judgment reversed on main bill of exceptions and affirmed on cross-bill.