23 Ga. App. 225 | Ga. Ct. App. | 1919
(a) In an action for damages against a railroad company for negligence resulting in injury to an employee, but not resulting in his death, the presumption of negligence remained the same after the passage of the act approved August 16, 1909 (Civil Code (1910), §§ 2782 et seq.) as theretofore provided by law.
(b) The injury to the plaintiff having been brought about by the derailment of the defendant’s cars, a common-law presumption of negligence on the defendant’s part arose independently of any statutory presumption similar to that imposed by section 2780 of the Civil Code. Stokes v. Saltonstall, 13 Peters (U. S.), 181, (10 L. ed. 115); Yonge v. Kinney, 28 Ga. 111, 113; Savannah &c. Railway v. Williams, 117 Ga. 420 (43 S. E. 751, 61 L. R. A. 249).
(c) The duties of the plaintiff watchman were such-as to demand a finding that he himself could not have been connected
(d) Plaintiff employee not having participated in the transaction from which the injury flowed, either by reasoh of any act performed by him or by virtue of the fact that his duties were so related to the transaction as to charge him with an assumption of the risk which occasioned the injury, this excerpt from the charge of the court, even were it to be considered as a statement of what is in effect the statutory presumption (Civil Code of 19.10, .§ 2780), was nevertheless not erroneous. See Atlanta &c. Ry. Co. v. Campbell, 56 Ga. 586, in which Campbell v. Atlanta &c. Ry. Co., 53 Ga. 488, and Thompson v. Central Railroad &c. Co., 54 Ga. 509, are explained and reconciled; Central Railroad & Banking Co. v. Kelly, 58 Ga. 108 (5), 112; Western & Atlantic R. Co. v. Vandiver, 85 Ga. 472 (11 S. E. 781); Wrightsville &c. R. Co. v. Tompkins, 9 Ga. App. 154 (70 S. E. 955); Hopkins, Personal Injuries, § 240; Park’s Ann. Code, § 2787, p. 1335, catchword “Presumption.”
(e) , Had the act which occasioned the injury been one in which the plaintiff in fact or in law could be held to have participated, the rule would be otherwise. Western & Atlantic R. Co. v. Jackson, 113 Ga. 355 (38 S. E. 820), cited in Louisville & Nashville R. Co. v. Barrett, supra.
Judgment affirmed.