Mitchell v. Western & Atlantic Railroad

30 Ga. 22 | Ga. | 1860

By the Court

Lyon, J.,

delivering the opinion.

The first ground of motion for new trial, that “ the verdict of the jury was contrary to the weight of the evidence,” was not argued or relied on, and is not, therefore, considered by this Court.

1. We cannot see that there is any error in the charge of the Court as stated in the second ground for new trial. The defendant, in cases of this sort, is only liable for such injuries as result from its mismanagement, neglect, or the want of due care and attention. The only question is, upon whom rests the burden of proof? And we can see no reason why it should not, in this case, as well as in all others of like character, be on him who holds the affirmative — the plaintiff. In different cases, different and various circumstances have been held sufficient to change the onus: such as the upsetting of the coach, running off the track, etc. The fact here relied on is, that the negro was a passenger, and was run over. This, in our opinion, is not sufficient, for the reason, that to have been run over as the negro was, he was, necessarily, not in the place where he ought to have been; that is, inside of the car.

2. The defendant undertook to transport the plaintiff’s negro from Atlanta to Kingston as a passenger. In the transit, the negro was injured. The responsibility of the defendant for such injury to the plaintiff “ must be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods,” for the reason, as given by the books, that the slave has volition and feelings, which cannot be entirely disregarded or overlooked in conveying him from place to place. He can not be stored away like a common package. The carrier has not, and cannot have, the same absolute control over him that he has over inanimate matter. In the nature of things, and in his character, he resembles a passenger, and not a package of goods. He is, in fact, a passenger, paid for as a passenger, and so treated and held, not only by defendant, but by plaintiff.

The doctrine of common-carriers, as to goods, does not apply to the carriage of slaves, and the carrier is not liable for the loss of, or injury to, slaves, unless the injury has been caused by the negligence or unskillfulness of himself or his agents.

3. From the statement of the charge of the Court, in fourth ground, the meaning of the Court below is not very clear; but taking the whole charge together, we think the Court meant simply to instruct the jury: that if the train stopped for wood and water only, less care or caution on its part was necessary, than if it had stopped for the purpose of taking on or putting off passengers; and if we are right in our unstanding of that charge, there was no error in the instruction.

4. There was no error in the refusal of the Court to give the charge requested by counsel for plaintiff, as stated in fifth ground of motion, for the reason, that the principles stated in that request, although sound legal prositions, when applied to the hirer of a slave, or to one who has the absolute control of the slave for the time, whose duty it is, not only to exercise proper care in the “supervision” of the slave, but also “to coerce him even to chains, if necessary for the protection of the property from peril.” Yet, they have no relevancy, whatever, to this issue; for the defendants in the carriage of slaves, has no supervision or control of them. The slave has volition, the right of locomotion, and the defendant has no right to restrain him in the exercise thereof, by the use of chains or other violent means, unless there has been an express stipulation between the parties to do so, and this is not claimed to be the fact.

5. Neither was there error in the refusal of the Court to give the chai’ge requested in sixth ground; because, although the Superintendent, Cooper, was in the same car with the negro boy injured, yet, there is not a particle of evidence that Cooper saw the boy go out of the car, or permitted him to do so; and while we put the decision, on this point, on this ground, we are not to be understood as holding or intimating that our decision would be different, if it was in proof that he did see the boy go out and permitted him to do so, or rather did nothing to prevent him. What I mean is, that that is a question we do not decide, because not properly before us; and it will be time enough to declare the rule when the facts make the question. If owners desire the prohibition of a railroad to restrain the locomotion and volition of a slave in his transportation, it is easy to stipulate for such unusual service, and then there will be no doubt as to the right and power to supervise and control his actions, while under their care and control.

6. Some evidence was offered to the jury, on the trial in the Court below, that when the train- stopped at Barrow’s Station for wood and water, it started again in an unusually short time, with unusual rapidity; also, that this start was made without first blowing the whistle, or, if at all, not sufficiently long, before starting, to give warning thereof to persons in an exposed situation. If these facts be true, or either of them — of which the jury are to judge — this is such evidence of neglect or mismanagement, on the part of defendant, as charges it with all loss or injury sustained by the plaintiff, in consequence of the cars running over the negro boy at that time, unless the defendant can affirmatively show that the injury to the boy did not result from this mismanagement or neglect, but from some other cause, and for which the defendant was wholly without blame or fault. Hence, the Court below committed error in the refusal to give the request to charge as stated in the seventh ground of new trial, with such qualification as is here stated.

Judgment reversed.