Louisville & Nashville Railroad v. Bradford , 135 Ga. 522 ( 1910 )

Lumpkin, J.

Bradford sued the Louisville & Nashville Bail-road Company, of which he was an employee, for a personal injury alleged to have arisen from the negligence of a coemployee. He obtained a verdict. The defendant moved for a new trial. The motion was overruled, and the defendant excepted.

The cause of action arose in March, 1906, and the case is therefore unaffected by the act of August 16, 1909 (Acts 1909, p. 160). Hnder section 2323 of the Civil Code, if the injured person is himself an employee of the railroad company, and the damage was caused by another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery. Here two things were necessary, in case of a railroad employee, to relieve him from the general rule of non-liability of the master for negligence of a fellow servant: first, that the damage was caused by another employee; and second, that the injured person was without fault or negligence contributing in any material degree to the injury. It has been held, that, upon proof of negligence on the part of 'another employee causing the injury, a presumption of freedom from fault or negligence on the part of the person injured would arise; or that, upon proof of the injury and freedom from fault or negligence on his part, a presumption' of negligence on the part of the company through its other employees would arise. Augusta R. Co. v. McDade, 105 Ga. 134 (31 S. E. 420); Atlantic R. Co. v. Jones, 132 Ga. 189 (63 S. E. 834). But the law does not declare, that, if an employee of a railroad company shows that he was injured by the negligence of a fellow servant, “the facts alleged would be presumed to be true until disproved by testimony satisfactory to” the 'jury; nor, that, if the plaintiff shows that he was-without fault, “the presumption would be that the allegations of fact are true,” and it becomes the duty of the jury “to decide as to the negligence.” This was too broad a statement. No presumption arises that all the facts alleged are true. For instance, one fact alleged was that the plaintiff was damaged in the sum of $2,000. There was no presumption about this, but the burden of proving his damages rested on the plaintiff.

A paper of the character described in the fifth headnote was not a release but could be introduced in evidence as an admission. The' presiding judge did not err in so stating or in charging the jury that admissions are scanned with care, as declared in section 5197 of the Civil Code. He erred in stating to them that “Tt simply goes to his credit.” An admission of a party in regard to how he was injured is not, in its effect, confined to merely discrediting his testimony on the stand.

The presiding judge should not express an opinion as to what hás been proved in regard to any disputed issue of fact. But merely to introduce a charge on the subject of permanent injury by stating to the jury that “there is some evidence and pleadings in regard to permanent injury” was not a violation of the rule just announced.

None of the other grounds of the motion for a new trial require a detailed discussion. As they appear in the record before us, none of them require a reversal save those above -indicated.

Judgment reversed..

All the Justices concur.