53 Ga. App. 856 | Ga. Ct. App. | 1936
In the petition of J. D. Williamson against Southern Railway Company it was alleged that on March 2, 1934, he was working as a switchman under the direction of the defendant’s foreman, Kelly, and the defendant’s yardmaster, Clyburn; that a part of his duties was to assist in the making up of trains by switching cars from a lead-track in the defendant’s yard into certain switch-tracks which ran off from the same; that on the day stated, Kelly and Clyburn were engaged in building in the yard a freight-train which was destined for a point in Florida; that the defendant and the plaintiff while building the train were engaged in interstate commerce; that approximately sixteen cars were assembled on a lead-track; that pursuant to his duties he rode a cut of two cars into switch-track number 5, and after stopping said cars, as he went up the track to where the foreman and the yardmaster were standing, the latter signaled him to line the switch of track number 4, which he did, and Kelly cut off two of the cars on the lead-track, which the plaintiff caught and rode into track number 1, the switch having already been thrown; that in so doing he rode upon the rear end of the cut, with his back toward the foreman and the yardmaster, and was busily engaged all the while in applying the brakes of the cars, and as he was preparing to dismount from them another car from the cut ran into the car on which he was riding, and caught his right foot and ankle in the drawhead and injured him; that said car was cut off by Clyburn, and was allowed by . Clyburn and Kelly to go- into track number 1 without any warning to the plaintiff, and with nobody thereon to control its movement; that he knew nothing of the contemplated movement of said car, was not warned thereof by any servant of the defendant, and had his back to said car at all times while he was riding the cars first sent into track number 1; that, having
The defendant answered, denying all allegations of negligence, and averring that the sole cause of any injury to the plaintiff was his own negligence amounting to a failure to exercise ordinary care for his safety, and that his negligence contributed proximately to any injuries he may have sustained. A verdict for the plaintiff was returned. A motion for new trial was overruled, and the defendant excepted.
Grounds 1, 3, and 4 of the motion for new trial relate to
The second ground of the motion complains of the admission, over objection, of testimony by the plaintiff regarding the practice of furnishing switchmen with a switch list, the objection being that it was irrelevant, because the plaintiff assumed the risk if he undertook to switch cars without having a switch list. This testimony is also referred to in connection with the first ground of the motion. At the time it was admitted the plaintiff had not amended the petition so as to strike therefrom the specification of negligence by failing to furnish a switch list, and the testimony was directly probative of allegations in the petition which had not been demurred to. It was not error to admit it at the time when it was admitted. No motion to exclude it was made after the plaintiff’s amendment was allowed. As already shown, however, the charge of the court finally excluded the switch-list matter from being considered by the jury as an act of negligence by the defendant.
Ground 5 of the motion alleges that the court erred in refusing a request to charge to the effect that the plaintiff could not recover if, in dismounting from the car, he used as a step a handhold which was not intended as a step for dismounting, and such use of the hand-hold was the sole proximate cause of the injury. It was not error to refuse this charge, because whether the plaintiff failed to use ordinary care was a question for the jury under all the facts of the case, and the court could not tell the jury that the method of dismounting from the car which the plaintiff said he followed was improper or negligent and that he could not recover for that reason. The contention of the defendant as to the use by the plaintiff of an unauthorized instrumentality was properly submitted to the jury. Ground 6 of the motion alleges error in refusing a requested instruction which described a certain mode of dismounting (by placing a foot on the drawhead, etc.), and
The request to charge as set out in ground 7 of the motion, to the effect that the plaintiff could not recover if he was injured in a manner different from that described in his testimony, was fully and fairly covered in the charge as given, although in language less argumentative than that of the request.
It is alleged in the 8th ground that the court erred in excluding from evidence, on cross-examination, the testimony of an expert railroad man that it was more dangerous to dismount a car by placing the foot on the drawhead or coupler than it would be by using the end ladder or by using the side ladder in dismounting. This was objected to by the plaintiff’s counsel, on the ground that there was no proof that the plaintiff had ever put his foot on the coupler. The court did not err in sustaining this objection. The plaintiff’s testimony as to where he put his foot, which was on the stirrup, was uncontradicted. No other witness testified as to this. Besides, the court charged the jury that if they should believe that the plaintiff was not injured in the manner described by him in his evidence, he would not be entitled to recover.
The general grounds of the motion and the ground alleging ex-cessiveness of the verdict are not argued in the brief for the plaintiff in error, and need no discussion. The court did not err in overruling the motion for new trial.
Judgment affirmed.