Vickers v. Atlanta & West Point Railroad ( 1879 )

Bleckley, Justice.

Non-suit is a process of legal mechanics: the case is chopped off. Only in a clear, gross case is this mechanical treatment proper. Where there is any doubt another method is to be used. — a method involving a sort of mental chemistry ; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence, and to feel every shock and tremor of its probative force.

The present is not quite a case for non-suit, though its neighborhood to that class seems very near. In section 3033, the Code affirms that “ a railroad company shall be liable for any damage done to persons, stock, or other property, by the running of the locomotives or cars or other machinery of such company, or for damage done by any person in the employment or service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence — the presumption in all cases being against the company.” The next section provides that “'no person shall recover damages from a railroad company for injury to himself or his property, where the same is done by7 his consent, or is caused by his own negligence ; if the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him.” Still another section, 2972, declares that “if the plaintiff, by ordinary care, could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover ; but in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” Construing. the three sections together, we discover that a presumption of negligence is raised against the company from the mere fact of inflicting the injury, and that on combining that presumption with the whole sum of the evidence, one of four results may follow: First, if the presumption is totally overcome, the verdict should be for the company ; secondly, whether it is overcome or not, if the plaintiff either caused the injury by his own negligence or could by ordinary care have avoided it, the verdict should still be for the company; thirdly, if the plaintiff was faultless, neither contributing to the injury nor omitting ordinary care to avoid it, the verdict should be against the company for full damages; and, fourthly, if the plaintiff contributed to the injury, but did not himself cause it, and could not have avoided it by ordinary care, the verdict should be against the company, not for full damages, but for the damages diminished in proportion to the default attributable to the plaintiff. The actual case under the evidence, is complicated with several special circumstances, such as the previous conduct of the engineer towards the plaintiff, the plaintiff’s tender age, the degree of parental control exerted over him, etc. In 27 Ga., 350, there was no statutory presumption to be rebutted, nor was the question of non-suit raised or discussed. In 56 Ga., 72, the injury sued for was the homicide of an employe, and as in such a case any fault whatever on the part of the employe would defeat a recovery by reason of section 3036 of the Code, and as the contributory negligence was manifest, the non-suit was sustainable. The case at bar seems more in line with that reported in 59 Ga., 593, and with various other authorities which we have examined ; amongst them, 38 N. Y., 445 ; 60 Ib., 326 ; 64 Ib., 13; 67 Ib., 417. The jury ought to deal with it.

Judgment reversed.