Louisville & Nashville Railroad v. Culpepper
82 S.E. 659
Ga.
1914
Check Treatment
Lumpkin, J.

M. A. Culрepper, by his next friend, brought suit against the Louisville and Nashville Railroad Company and the Atlantic Coast Line Railroad Company, as lessees of the Georgia Railroad and Banking Company, to recover on account of a personal injury alleged to have been received while discharging his duties ‍‌​​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌​‌​‌​‌‌‌‌‌‍as a flagman, as a result of negligence in moving the train without a signal. It was alleged that the train on which the plaintiff was working wаs engaged in transporting interstate freight, and the Federal employer’s liability act of 1908 was invoked (35 Stat. 65, II. S. Comp. Stat. Supp. 1911, p. 1322).

1. The ground of the motion for a new trial which assigned error on the overruling of ‍‌​​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌​‌​‌​‌‌‌‌‌‍a motion for сontinuance showed no abuse of discretion by the court in that ruling.

2. In the charge the presiding judge stated that thе plaintiff contended that he was employed as a brakeman, and was injured while acting in that capаcity; and on another occasion he referred to the contention as being that the plaintiff was а brakeman. The petition alleged that he was a flagman. He so testified, and there was no conflict in thе evidence on that subject. He contended that under the order of the conductor he was perfоrming his duty as a flagman. The controversy ‍‌​​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌​‌​‌​‌‌‌‌‌‍in that regard was whether his action was in the discharge of his duty as a flagman, or whether he voluntarily undertook to go between cars anct do an act which was not legitimately within the sсope of his duty. In view of the allegation, the evidence, and the entire charge, we do not think that the mere inadvertence in using the word “brakeman.” in lieu of' the word “flagman” could have misled the jury, or could have injuriously affected the defendants. Wilson v. State, 66 Ga. 591; *277Southern Bell Telephone Co. v. Jordan, 87 Ga. 69 (13 S. E. 202); Hoxie v. State, 114 Ga. 19, 23 (39 S. E. 944); Berry v. Clark, 117 Ga. 964 (44 S. E. 824); Southern R. Co. v. Merritt, 120 Ga. 410 (47 S. E. 908); Sellers v. Savannah Ry. Co., 123 Ga. 386, 389 (51 S. E. 398); Turner v. Elliott, 127 Ga. 338, 341 (56 S. E. 434); Stewart v. Ellis, 130 Ga. 685, 688 (61 S. E. 597); Perdue v. State, 135 Ga. 277 (69 S. E. 184); Becker v. Donalson, 138 Ga. 634 (75 S. E. 1122); Taylor v. State, 138 Ga. 826 (76 S. E. 347).

3. In stating the contentions of the plaintiff, the presiding judge said that the plaintiff cоntended that the conductor was his superior officer in charge of the train, whose orders he was required to obey under the rules of the companies, and that the conductor “ordered him to go between and uncouple certain cars.” Error was assigned on this charge, on the ground that neither the petition nor thе evidence authorized a charge that the plaintiff contended that the conductor ordered him tо go between and uncouple the cars. That particular language was not used, but it did not substantially differ from the contention as raised by the pleadings and evidence. The petition alleged that the conductоr instructed the plaintiff to go with him in order that he might show the latter a certain car to be left at the station whеre the train then was; and that the plaintiff, under instructions from ‍‌​​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌​‌​‌​‌‌‌‌‌‍the conductor, went to make the delivery of the сar. He testified that the conductor instructed him to leave at that place the car which formed a portion of the train, and that the conductor instructed him to be sure that he left the right car, and to tie the brаkes on it before he left it. At another time he testified that the conductor told him to do the work; that he turned thе angle-cock of the air-hose on one side of the car, and the “train-hand” did the same on the othеr side; that this was done to keep the air from leaking; that the train-hand then attempted to uncouple thе air-hose, but it did not work, and, after making several attempts to loosen it, he asked the plaintiff to assist him, and whilе the plaintiff was doing so the train was negligently moved, causing the injury to the plaintiff. Under these facts the charge complained of did not furnish cause for a new trial.

4. Error was assigned on a charge that the jury should ascertain from the evidence whether or not ‍‌​​​‌​‌‌‌‌‌‌​‌​​‌​​‌‌​‌‌‌​‌‌‌‌‌​​​‌​‌‌​‌​‌​‌‌‌‌‌‍the injury decreased the ability of the plaintiff to work and earn money, and whether or not *278he was entitled to recover any amount on that account. It was urged that therе was no evidence as to the plaintiff’s ability to work and earn money being diminished, or as to the amount of such diminution, and that therefore the charge was unwarranted. The injury occurred on January 28, 1911. The trial took plаce on April 9,1913. The plaintiff testified in person. He stated, that his foot was so crushed that it had to be amputаted at the instep at the first operation; that seven operations had been performed, taking off additional portions of his leg; that skin had been taken from another part of his body and grafted on the woundеd member; that he had suffered much from the injury; that the last operation took place on February 25 preceding the trial, and a scab still remained; that at the time of the injury he was drawing different amounts of pay eаch month; that sometimes he drew $74, and at one time $88.96. He was before the jury, and doubtless they saw the extent of the amputation, and could form an opinion as to its effect upon his ability to continue to work. He used lаnguage calculated to call the attention of the jury to his condition. In the brief of evidence, in cоnnection with the statement in regard to the grafting of skin, occurs the word “indicating” in parentheses; and in referring tо the amputation at the instep, he used the'word “here.”

While the evidence on the subject of loss of аbility to work and earn money may have been somewhat general, it can not be held that the charge оn that subject was entirely without a basis, so as to require a reversal. O'Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 579 (36 S. E. 59); Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (11), 369 (54 S. E. 110).

5. The evidence was sufficient to support the verdict, and there was no error in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.