154 Ga. 501 | Ga. | 1922
(After stating the foregoing facts.) This case is in this court on the grant of a petition by the defendant for the writ of certiorari, to review the decision of the Court of Appeals, which was adverse to the defendant. The only grounds of alleged error are those set out in the fifth, tenth, eleventh, and fifteenth grounds of the motion for new trial, which are set out in extenso in the statement of facts.
In the tenth ground it is alleged that the court erred in permitting a witness for the plaintiff, over objection of counsel for the defendant that it was irrelevant, to testify that rocks had fallen off from its side into the cut where the plaintiff had been injured. The court admitted this evidence to show notice to the defendant of the dangerous condition of this cut. It does not appear, from the facts stated in this ground, when these rocks had fallen into this exeavation. In the application for certiorari, and in the brief of counsel for the director-general, it is asserted
In the eleventh ground it is urged that the trial judge erred in allowing the plaintiff, over objection of defendant’s counsel that it was immaterial, to testify that men, who had not been in the service as long as he had been, had been promoted by seniority and gone ahead of him as engineers, since this accident. What was meant is, that firemen who had been in the service of the company for shorter terms had been promoted to engineers over the plaintiff, due to the fact that the latter had been injured. Was this evidence admissible? In Richmond etc. Railroad Co. v. Allison, 86 Ga. 145 (12 S. E. 352, 11 L. R. A. 43), this court held that it was improper to allow proof of a particular possibility, or even probability, of any increase of wages by appointment to a higher public office, especially where the appointment is somewhat controlled by political reasons. This ruling was put on the ground “ that Allison’s promotion was too' uncertain, and the possibility of an increase of his salary . . too remote to go to the jury and for them to base a verdict thereon.” In the opinion Justice Simmons said: “We believe the rule of most of the railroads in this State is to promote their employees. An employee com
his damages. In Central of Ga. Ry. Co. v. Perkerson, 112 Ga. 923, 926 (38 S. E. 365, 53 L. R. A. 210), this court said: “It is pretty well established that in proving the value of the life of a deceased employee it is not competent to prove that he was in the line of promotion in his calling, and the increased rate of wages which he would have received if promoted. 8 Am. & Eng. Enc. L. (2d ed.) 943 and cases cited. See also Richmond & Danville R. R. Co. v. Allison [supra]. The reason for the rule is that the chances for promotion are too remote, and dependent upon too many contingencies to be considered.”
But counsel for the plaintiff insist, that, under the facts of this case, the promotion of the plaintiff was not dependent upon uncertain factors and contingencies. This contention is based upon his testimony that “promotion on the railroad is by seniority;” but the plaintiff did not testify that promotion was dependent solely upon seniority. At the time he was hurt he was in the employment of the director-general of railroads; and “ Supplement No. 7 to General Order No. 27” was in force. Art. 12 of this supplement declares: “ Promotions shall be based on ability, merit, and seniority; ability and merit being sufficient, seniority shall prevail.” So promotion of the plaintiff depended at last upon the presence of these three factors. So we cannot say that the ruling laid down in the above-cited cases is not applicable to
The court admitted two rules of the operating department of the Louisville & Nashville Eailroad Co., over the objection of .the defendant that they were irrelevant; and this ruling is complained of in the fifteenth ground of the motion for new trial. One of these rules requires that all accidents, involving injury to persons, or damages to property, track, structures, or rolling-stock, must be reported promptly by wire to the proper officers, and confirmed in writing on prescribed forms. The second’ of these rules prescribes, that section foremen 'must take every precaution during storms to prevent accident, that at exposed points a strict watch must be kept, and that particular attention, day and night, must be given to cuts, tunnels, and'other places where rock, earth, or trees are liable to fall upon the track, or fills that are settling. Were these rules properly admitted by the court? These rules prescribe the duties of employees of the Louisville & Nashville Eailroad alone. They have no application to employees of the Western & Atlantic Eailroad; and do not fix any duties to be discharged by the employees of this road. It does not appear that it was the duty of any employee of the Louisville & Nashville Eailroad to report this slide, and that he failed to discharge such duty. The complaint is that the engineer of the Western & Atlantic Eailroad, who was in charge of a passenger or troop train, which had passed through this cut a short time prior to this accident, and who saw some rock near the track in this cut, failed to -report it, when he reached Yinings. This rule did not apply to this engineer, and did not prescribe any duty to be performed by him. For this reason, the first of said rules was not admissible.
The second of the rules prescribes the duty of section foremen of the Louisville & Nashville Eailroad. It applies solely to foremen of that road. It does not fix any duty to be discharged by the section foremen of the Western & Atlantic Eailroad. Counsel for the plaintiff insists that the introduction of these rules was proper, because the suit was against the director-general as director of both the Nashville, Chattanooga, & St. Louis Eailroad and the Louisville & Nashville Eailroad. The director-general is to be treated as the director of each separate system of trans
Upon an analysis of the charge complained of in the fifth ground of the motion for new trial, we do not think that it was erroneous on the ground that it placed upon the defendant a' greater burden than that imposed by law. This extract from the
We reverse the judgment of the Court of Appeals on the ground that it erred in not reversing that of the trial court on its ruling in admitting evidence dealt with in the second and third divisions of this opinion. Does not even Homer sometimes nod?
Judgment reversed.