Atlanta & Richmond Air Line Railway Co. v. Campbell , 56 Ga. 586 ( 1876 )

Bleckley, Judge.

1. We deal only with those grounds of the motion for new trial which question the sufficiency of the evidence to support the verdict, under the law applicable to the case. When the case was here on a former writ of error, (53 Georgia Reports, 488,) it was ruled, among other things, that for the plaintiff to recover it was necessary for him to show that the injury was caused without fault or negligence on his part. We see no reason to doubt the correctness of that ruling, on the special facts then in evidence, and nowin evidence. The suit is for an injury alleged to have resulted from the negligent performance of work and labor in which the plaintiff actively participated. He was engaged, with others, in delivering telegraph poles along the line of the railroad, and in the act of attempting to land one of the poles from the car, it was turned out of its proper course by striking against a standard. Before it came to rest, it threw the plaintiff off the car and fell upon him. If the pole had been passed over the standard instead of being thrown when not lifted high enough to clear it, there is no reason to suppose that anything would have gone wrong. It was the failure to have the proper elevation, when the pole was put laterally in motion, that constituted the irregularity. The plaintiff, himself, was one of the persons who aided in lifting the pole and putting it in motion. Did he do his whole duty, or was it partly by his negligence or fault that the irregularity occurred ? If he was not in fault, who was ? Did the evidence show distinctly that any of the employees, other than the plaintiff, were negligent at this stage of the transaction, the irregularity would be accounted for. But it does not. There is the same abstract probability that he was derelict as that anybody else was, and the matter is left to be dealt with, either as misadventure, or as the result of negligence common to the plaintiff and his fellow servants. If he would affirmatively exculpate himself or inculpate them, either would be sufficient; but, not having done the latter, he is bound to do the former or fail in his suit. The proof of negligence, in others, adequate in its nature to have produced the particular effect to be accounted for, would change the onus. The presumption would then be, that as a sufficient cause was in sight, the whole cause was discovered.

2. It is obvious that suits against railroad companies by their employees for personal injury, present two classes of cases. In one, the injury is the offspring of some act in which the plaintiff participated; in the other, he is passive and the particular act from which his injury results, is performed wholly by other servants of the same master. This case, as reported in 53 Georgia Reports, supra, belongs to the former class, and it will be seen that the rule announced in the first head-note above is confined accordingly. Of the other class is the case in 54 Georgia Reports, 509; and this distinction will serve to reconcile the two cases. With some correction of phraseology, which is too general, both may be found worthy to stand as permanent rules of decision.

3. It remains only to add, that the evidence in the record before us is notsufficient to make a basis of recovery on either of the two lines of proof which have been indicated. The plaintiff, by reason of the loss of memory consequent upon the injury, has the misfortune not to know whether he performed his duty or not. We are impressed with his candor as a witness in his own case, and if the law could bend at all, we should deem his infirmity and veracity put together, as giving a claim on its favor. But the law is- constant and impartial; neither has he succeeded in fixing any fault or negligence on any of his co-employees. The occurrence has, to us, the appearance of an accident, and we think there should be a new trial.

Judgment reversed.