Jones v. Georgia Southern Railroad

Crawford, Justice.

Marion Jones, the plaintiff in error, brought suit in the court below against the defendants for two thousand dollars, -for damages alleged to -have been sustained by him, by the carelessness and negligence of their empl'oyés and agents, and without fault or negligence on his part.

On exceptions to the service, the judge below after hearing testimony — the facts as well as the law on the traverse having been submitted to him — held that the service on the Georgia Southern Railroad Company was good, but that there had been none upon the defendant, John Tucker. To that part of the ruling referring to the service upon Tucker the plaintiff ‘excepted. The plaintiff then proceeded to submit his testimony on the merits' of the case, and when he had closed, counsel for the defendant moved a non-suit, which was granted, and the plaintiff again excepted.

1. The testimony showed that the Georgia Southern Railroad, with all its property and franchises, had been leased to Thomas A. Walker and John Tucker, receivers of that part of the Selma, Rome and Dalton Railroad which lies in the State of Alabama. This lease was made in pursuance of law, and by the authority of the charter'of the Georgia Southern Railroad Company, as well as by the decretal order of the chancery court for the fifth district of the middle division of Alabama: This railroad, there-

fore, being operated by, aiid in the possession of, individuals, under a legal and valid lease, service should have been perfected as provided by law for such cases before the court could obtain jurisdiction of them.

The attempt to serve the defendant, Tucker, by leaving a copy of the declaration and process with an agent in Dalton, was properly ruled to be no service. Such service is only good against a corporation. -.Code, §3369.

2. On the judgment of non-suit to which exception was also taken, we can see no error. The plaintiff, Jones, was the track-hand and servant of Walker and Tucker, lessees, and not of the Georgia Southern Railroad Company, then the only defendant before the court in this case.

But if this were not so, the law requires before a recovery can be had by an employé of a railroad company, who sues for a personal injury sustained by the negligent performance of an act iii which he participated, he must either show that.he was wholly free from fault himself, or that there was negligence on the part of his fellow-servants, and until this is done, he has not made a prima facie case against the company. 56 Ga., 586; 58 Ib., 107 ; 59 Ib., 436; Ib., 73 60 Ib., 119

The testimony offered being insufficient to bring the plaintiff’s case within these requirements of the law, a ■judgment of non-suit was*properly awarded.

Judgment affirmed.