Augusta Southern Railroad v. McDade , 1898 Ga. LEXIS 464 ( 1898 )

Eisi-r, J.

1. It appeared that after plaintiff’s son had been killed by the defendant, the Augusta Southern Railroad Company, it leased in perpetuity its property and franchises to the ’ South Carolina & Georgia Railroad Companv. The latter com.pany was not a party to the suit. The trial judge asked the panel of jurors if any of them were stockholders or employees of the lessee company. Certainly stockholders and employees of' the lessee company were not disqualified from serving as jurors- on the trial of an action against the lessor company, it not appearing that by reason of their connection with the lessee company or otherwise they had any interest in the result of the-trial. As no juror, however, was set aside for the supposed disqualification, no harm was done, and there can be nothing in the assignment of error on this point.

2. One of the grounds of the motion for new trial was, that Judge Eve, who presided at the trial of the case, was disqualified by reason of the fact that he was judge of the city court of Richmond county and commissioner of roads and revenues for it, and that such county was the owner of 13 7-16 shares of the capital stock of the defendant company, and 'that these facts were unknown to defendant’s counsel at the time of the trial. .It was not pretended that Judge Eve had any personal or pecuniary interest in the result of the action, and the mere fact that he, by virtue of being the judge of the city court of Richmond county, managed its financial affairs, did not disqualify him from .presiding in the case. Even if it had, there was no showing that the officers of the defendant company were ignorant of the facts when the case was tried.

3. Another ground of the motion was 'the refusal of the judge-to give in charge to the jury the following written request: “If you believe from the evidence that plaintiff’s son met his-death by being tripped or thrown in passing out between the cars, after the coupling had been made, and that it was impossible to have stopped the engine and prevent the homicide, then I charge you that the plaintiff can not recover in this case, and your verdict should be for the defendant.” There was no error in refusing to give this request in charge. The non-liability of the defendant was not a necessary legal conclusion from the hypothetical facts stated. Such facts may have existed and yet the defendant may have been liable. The negligence of the defendant may have caused plaintiff’s son to trip and fall, or it mav have been defendant’s fault that the engine could not be stopped and the homicide prevented. These were matters for-the jury’s consideration.

4. Another ground of the motion for new trial was the refusal to give in charge the following written request: “ I charge you further that the danger of being tripped up or thrown down hy the rail in coupling cars is one of the risks.incidental to such service, and when plaintiff’s son attempted to make this coupling he assumed all the .risks and dangers incident to the same; and if his death resulted from his taking such risk, and defendant’s agents were guilty of no negligence, or neglect, or omission of duty, then the plaintiff can not recover in this case, and your verdict should be for the defendant.” The court was right in refusing to charge this request. 'It is a familiar rule that, “a servant assumes the ordinary risks of his employment, and is-bound to exercise his own skill and diligence to protect himself.” Civil Code, § 2612. But what particular perils are incident to-ft given business must be determined by the jury, and not by the 'judge, under all the facts and circumstances of each case. See Middle Ga. & At. Ry. Co. v. Barnett, 104 Ga. 582.

5. The court charged the jury as follows: “ I charge you that if plaintiff shows that MeDade was not to blame, then the law presumes that the railroad was to blame; or if the plaintiff shows that the railroad company or any of its servants were to blame, then the law presumes that MeDade was not to blame; and such presumptions in favor of the plaintiff remain until they are rebutted and overcome by evidence.” Also, “If you believe that MeDade did not cause the injury by his fault, the onus is shifted to the railroad company to show that its agents were in the exercise of all reasonable care and diligence; otherwise the statutory presumption of negligence would be against the railroad company.” Blaintiff in error contends that these charges were erroneous in a suit against a railroad company for the homicide of one alleged to be its employee. A concise statement of the rule as to the burden of proof in cases of this character is, that proof that a deceased employee of a railroad com1 pany, who was killed by the running of its train, was without fault, raises a presumption that the company "was in fault, and proof that thé servants of the company who were operating the .train were in fault puts upon tbe company the .burden of showing that the deceased himself was negligent. Central Railroad v. Kenney, 58 Ga. 485; Georgia Railroad v. Bryans, 77 Ga. 429; Central Railroad v. Small, 80 Ga. 519; Johnston v. Richmond & Danville R. Co., 95 Ga. 685. The above charges were .substantially in accordance with the rule stated.

6. The court charged the jury as follows: “Now, gentlemen of the jury, under the laws of Georgia, a railroad company is .liable in damages where a person is killed or injured by the running of its trains, unless the 'company shows that its agents and •employees were at the time exercising all ordinary care and diligence.” Plaintiff in error contends that this charge was not applicable in a suit for the homicide of an employee 0*f the railroad company. ■ This court has several times held that in an. action 'against a railroad company by an employee for personal injuries alleged to have been occasioned by the negligence of a coemployee, no presumption of negligence arises against the company .until the plaintiff has affirmatively shown that he himself was free from fault. Georgia Railroad Co. v. Hicks, 95 Ga. 301; Florida Cen. & Pen. R. R. Co. v. Burney, 98 Ga. 1; Port Royal & Western Carolina Ry. Co. v. Davis, 103 Ga. 579. In the case at bar the burden of proof was upon the plaintiff to make out her case by proving, either that the deceased himself was entirely free from fault, or that his death was caused by negligence of his coemployees. Unless a prima f g.cie case was made out by .the proof of one or the other of these two propositions, no prer sumption could arise against the company; and to charge, with- . out qualification, that the company was liable, unless it showed that its agents and employees were at the time exercising all ordinary care and diligence, was error. Following Georgia R. Co. v. Hicks and Port Royal & W. C. Ry. Co. v. Davis, supra, we must rule that such error was not cured by the court subsequently charging the correct rule on the subject, without calling . attention to the error already committed.

7. ErrOr is assigned upon the following charge of the court: “ This suit is brought by the mother of the young man that is ■claimed to have been killed through the negligence of the- com- , pany; if the evidence discloses that' he substantially contributed 'to her maintenance, she is entitled to maintain the suit.” It'is settled.that under the proper construction of section 3828 of the -Civil Code a mother can not recover for the homicide of her ■child unless it appear, not only that the child contributed to her . support, but also that she was dependent upon the-child for such support. Clay v. Central R. Co., 84 Ga. 345; Atlanta & Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369; Smith v. Hatcher, 102 Ga. 158. As the charge entirely eliminated from the eon- . sideration .of the jury the necessary element of the mother’s de-pendenee upon the child for support, such charge was manifestly erroneous. ■ '

8.' An elaboration of the 8th headnote would not be profitable.

Judgment reversed.

All the Justices concurring. ■