Thomas v. Georgia Railroad & Banking Co. , 38 Ga. 222 ( 1868 )

Warner, J.

1. There are two grounds of error assigned to the judgment of the Court below in this record. First, in refusing to dismiss the appeal; second, in dismissing the plaintiff’s action for want of jurisdiction. In our judgment, there was no error in refusing to dismiss the appeal, upon the statement, of facts presented. When a motion is made to dismiss an appeal at the first term after an appeal has been entered, on the ground of the insufficiency of the security, a rule should be applied for, requiring the party to give other security, or to shew cai^e why the appeal should not be dismissed, of which the party should have reasonable notice, as it is his privilege to give other and better security, if he shall be required to do so. 2. In our judgment, the Court below erred in dismissing the plaintiff’s-action for want of jurisdiction in Dekalb county, in which the suit was pending. By the' 3320th section of the Code, it is declared that “ All railroad companies shall be liable to be sued in any county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, their officers, agents, or employees, in or by the running of the cars, or engines, for the purpose of recovering damages for such injury.” The plaintiff alleges that he ivas injured in his person, by the defendant, upon his road, in the county of Dekalb, by the running of a “ hand-car.” It was contended; on the argument, that the “cars” contemplated by the Code, meant such cars only as were propelled by steam power, and not “ hand-cars.” The reply is, that the Code makes no such distinction, and the Courts have no authority tq do so. The words of the Code are general, and embrace all cars which are run upon the road by the defendant. Besides, it is not very apparent to this Court, why an injury may not be done to the person, and property, of individuals by the careless and negligent running of “ hand-cars ” by the defendant, upon the road, as well as by the running of other cars propelled by steam. The question of injury may be one of degree only; but either* may be the instrument of injury, when carelessly or negligently managed by the servants and agents of the company. Let the judgment of the Court below be reversed.