Lewis v. Turner , 40 Ga. 416 ( 1869 )

McCay, J.

This case turns upon the question whether it is included among the actions declared by the Act of April, 1863, to be well founded. That Act, though somewhat uncertain, was, in our judgment, intended to provide that suits then pending against the Western & Atlantic Railroad, if brought after the adoption of the Code, should be decided upon the same principles as if they were against other railroads. In other words, such suits were to be decided as though the Act of 1856 had included the Western & Atlantic Railroad.

Previously to the Act of 1856, a servant could not recover from a railroad company for damages caused by another servant. The Act of 1856 modified this rule, but that Act did not mention the Western & Atlantic Railroad, and this Court in Walker vs. Spurlock, 23d Georgia, 436, held that the Act did not apply to the State Road. By the Code, however, this road is put upon.the same footing as other railroads: Code, secs. 969 and 970. The Act of 1863 seems to have been intended to make the Western'& Atlantic Road liable as other roads, even though the wrong was done before the Code went into effect, provided the suit was pending at the date of the Act, and was brought after the adoption of the Code. The Code was adopted in 1860, and went into effect 1st January, 1863. This suit was pending at the date of the Act of 1863, and was brought after the adoption of the Code, and is, therefore, included in that Act, although when the wrong was done no such suit could by law have been brought against this road. It is a retroactive statute in terms. The Western & Atlantic Road belongs to the State, and it. is no infringement of any private right for the Legislature to pass such a retroactive law. The State is the real party; the suit is nothing but a mode, provided by law to ascertain what the State owes the citizen, on the principle that applies to private persons. When ,the judgment is obtained, it is only an .authority to the railroad officers to pay, since it will hardly be contended that the plaintiff could seize on the State’s property.

We think the action maintainable under the Act of 1863. The Western & Atlantic Railroad is liable to one of its servants for damages caused by the negligence of another servant, even though the wrong was done before 1st of January, 1863, provided the wrong was done after the Act of 1856, and the suit was brought after the adoption of the Code and was pending at the date of the passage of the Act of April, 1863. Judgment affirmed.