36 Ga. App. 133 | Ga. Ct. App. | 1926
In this action under the Federal employer’s liability act, by Parrish against the Central of Georgia Railway Company, the court on demurrer struck ,an amendment to the plaintiff’s petition, which had been allowed subject to demurrer, and at the close of the plaintiff’s testimony awarded a nonsuit. The case is here upon exceptions by the plaintiff to these rulings. The original petition alleged: The plaintiff was a member of the defendant’s switching crew'in what is known as its “industry yard,” in Fulton county, the work of this crew being “to make up and distribute trains in said yard.” During a certain night the plaintiff, while in the line of his duty, was walking between tracks No. 2 and No. 3. A freight-train of the defendant, composed of fruit-cars, proceeded along track No. 2, and, as it was passing, the plaintiff was struck on his head by an open door of one of the cars, “which was swinging out 3-% to 4 feet beyond the track upon which the said train was running,” with the result that the plaintiff sustained, described injuries. The plaintiff was injured through “the negligence of the defendant in allowing the door of said freight-train to swing open when it knew or ought to have known that its agents or servants were likely to be along or near the track of said train at the point where the plaintiff was struck.”
The amendment to the petition was, “that the defendant was negligent in failing to make an inspection of the door of the fruit-car which swung open and hit plaintiff, as a proper inspection of the same at the point of loading would have' disclosed the defective condition and want of repair of said door, and that in its bad condition it was likely to fly open and thereby endanger
The judgment excepted to was rendered on November 24, 1925. The bill of exceptions was presented on January 21, 1926, and contained the statement that it was presented “within the period allowed by law, the term of said court lasting more than 30 days,” which statement was duly verified by the usual certificate of the presiding judge to the bill of exceptions. This certificate was signed by the judge on January 29, 1926. The defendant in error has moved to dismiss the bill of exceptions, upon the grounds that it does not appear that the bill was presented within 30 days after the adjournment of the term of the court in which the case was tried, and it does not appear that the bill was certified “within 30 days from said adjournment.” The evidence will be referred to in the opinion.
Where it appears from the bill of exceptions that the same was tendered within the time required by law, a mere failure on the part of the presiding judge to sign it within the time prescribed is not cause for dismissal. Civil Code (1910), § 6187. A bill of exceptions to review a judgment rendered in term must in every case be tendered to the trial judge within 30 days from the adjournment of the court, and must be tendered within 60 days from the judgment complained of, where the court is not adjourned within 30 days from its organization. Civil Code (1910), § 6152;
The amendment, when considered in connection with the allegations of the original petition, was not subject to the objections interposed thereto in the demurrer. There is no contention that it set forth a new and distinct cause of action. See City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318); Georgia Ry. &c. Co. v. Reeves, 123 Ga. 697 (1) (51 S. E. 610); Bowen v. Adams, 129 Ga. 688 (2) (59 S. E. 795). The demurrer was a general attack upon the amendment as a whole. There was no specific demurrer to any part of it for a want of sufficient particulars. The allegation that “the door of said car was old and the latches
The evidence authorized the inference that the plaintiff was struck by an open door of a passing train, at the time and under the circumstances alleged-in the petition. We think that from this evidence, unexplained, the jury would have been authorized to infer that the company was negligent as alleged in the petition. Bonita Theater v. Bridges, 31 Ga. App. 798 (1 c) (122 S. E. 255). This is to hold that in some circumstances the maxim res ipsa loquitur may be applicable in a suit for negligence by a servant against his master. The same has been held before in this State, both by our Supreme Court and by this court. Chenall v. Palmer Brick Co., 117 Ga. 106 (43 S. E. 443); Palmer Brick Co. v. Chenall, 119 Ga. 837 (47 S. E. 329); So. Ry. Co. v. Wessinger, 32 Ga. App. 551 (124 S. E. 100); Emory University v. Bliss, 35 Ga. App. 752 (134 S. E. 637). On careful examination we are of the opinion that this court did not rule to the contrary in Williams v. W. & A. Ry. Co., 20 Ga. App. 726 (93 S. E. 555), although, in the opinion in rehearing, certain cases taking the opposite position were cited with apparent approval. It remains, however, that no direct ruling was made upon the question in that ease. Both that and the later Wessinger case were suits under the Federal employer’s liability act. In the latter case we held directly that the maxim referred to may be applied in certain instances in cases arising under that act. There is no reason why it may not be. applied in a suit under the liability act, if it can be applied at all in negligence cases between servants and their masters. This last has been disputed in many jurisdictions, and the Federal courts (other than the United States Supreme Court) have generally, but not universally, held that the rule is applicable in such cases not at all or only within certain more or
We are not ruling in this case that the negligence of the company may be inferred from the mere happening of the injury. The evidence showed that if the plaintiff was struck by the door' as alleged, the door extended outward beyond the side of the car from 18 to 24 inches, and thus created a condition of the train that was both abnormal and dangerous. What we hold is that from the injury and the attendant circumstances the jury were authorized to find that the accident would not have happened unless the master, who was in control of the train, was lacking in diligence. Under the rulings made in the last review of the Chenall case, supra, the inference of negligence as to any defects in the door will at once lose its force should it appear that the defect was latent. The maxim in question would not be inapplicable merely because there was nothing to show whether the defect was latent or patent. Ocean S. Co. v. Matthews, 86 Ga. 418 (12 S. E. 632).
Those decisions which deny the applicability of the maxim in cases of master and servant generally proceed upon the theory that the injury may be attributed to the negligence of a fellow
We think that in the absence of any explanation of the circumstances disclosed by the plaintiff’s evidence, there was enough to Carry the case to the jury, and therefore that the court erred in awarding a nonsuit.
Judgment reversed.