Campbell v. Atlanta & Richmond Air Line Railroad , 53 Ga. 488 ( 1874 )

Trippe, Judge.

Under section 3033 of the Code, an employee of a railroad company would not be entitled to recover damages for an injury sustained by him, caused by the negligence of other employees of the company. Without sections 2083 and 3036, he would be under the common law rule, and could not maintain an action. Section 3033 puts the burden upon the company in all cases where damage is done by the running of its train, to make it appear that its agents haye used all ordinary and reasonable care and diligence. Section 3036-, in giving a right to employees which they did not have, says, if the person injured is himself an employee of the 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 the recovery. Construing these sections together, their true intent and meaning'is, that whilst the company must prove that its agents have used proper care and diligence, it is necessary for the employee who sues, to show that the injury was caused without fault or negligence on his part. In such a case, the contest is between an employee and the company on account of alleged negligence on the part of other employees. The construction we give the provisions of the Code quoted, ¡makes it incumbent on both sides, to show the discharge of their duty. On the part of the plaintiff, that ho was without fault or negligence, to entitle him to recover; and on the part of the company, that its agents, the other employees, were not wanting in care and diligence, to entitle it to a successful defense against a claim for damages, for which it otherwise would be liable.

2. Tift judge before whom the case was tried was dissatisfied witli the verdict and granted a new trial. We do not feel authorized to say he abused his discretion, and are of ■opinion that there should be another investigation of the case,

■Judgment affirmed.