Woodruff v. Alabama Great Southern Railroad , 75 Ga. 47 ( 1886 )

Hall, Justice.

Without doubt, this record does not make a strong case for the recovery of damages in consequence of the negligence of the defendant; indeed, it is a very weak case, but as there is possibly enough in the evidence to enable the jury to say, if it is uncontradicted, that the injury was occasioned by the defective machinery of the company, and as the law which is, to determine the plaintiff’s right is somewhat uncertain, the injury having been sustained in another state by the plaintiff, while acting as an employe of a railroad company chartered in that state, and as it is doubtful whether, under the common lav/, which obtained there at the time of the casualty, he sustained the relation of co-employé to the company’s agent whose negligence caused the damage, we think it better that the case should have gone to the jury than to have been non-suited. Such, at least, has, for a long time, been the settled practice of our courts, and because the casualty happened in another jurisdiction, this is not a sufficient reason to justify a change in our modes of trial and procedure. With these differences in regard to plaintiff’s relation to defendant and- the place of the occurrence, this case is within Fraser et al. vs. Charleston and Savannah Railway Company, determined at this term. While the rule referred to does not commend itself to our judgment, and while we would greatly prefer seeing it modified, and always feel reluctant when called upon to enforce it, yet it has been too long and too firmly established to justify any departure from it, and we are constrained to yield it obedience, and to declare that the non-suit should not have been awarded, and must order the judgment reversed.