Lewis v. McAfee

By the Gowrt. Lyon, J., delivering the opinion. The only question made in this case is, that the Court below should have allowed the motion for a new trial on the only ground taken therein : that the verdict was contrary to law, the charge of the Court, and against the evidence, the weight of the evidence, and not supported by the evidence on the issue, (a variety of the same things stated in different ways.) The Court below refused the motion, and we concur in that judgment. One of the witnesses, Wofford, testified that the negro was hired to the Western and Atlantic Railroad by his father, as agent for the owner, to do shop work. Instead of being put to that service he was employed generally as a train hand, and was put to any business that required his services by the agents of the road; and on his return from the car shed, where he had been sent by one of the agents of the road, to the place of his general duties, the boy, of his own accord, and without the direction of any one of the employees, chose to ride back, by getting up and standing on the steps or platform of the car of the passenger train that was going out at that time, a thing that he was frequently in the habit of doing within the knowledge of the employers of the road, and getting off when the cars reached the place of general work or freight depot, and while the cars were in motion. On the morning in question, the train was going at a much greater speed than usual, or that the rules of the road allowed, and in attempting to get off at his usual place, he was run over and killed. This is the evidence in support of the verdict, and we think it altogether sufficient for that purpose. The accident happened to the negro while he was in the .actual performance of a service for the road, different from [469] that for which.he was specially employed. The rule of law on this subject is, that if the thing (hired) is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss occurs, although by inevitable casualty, he will generally be responsible therefor. The Mayor, etc., vs. Howard, 6 Ga., 219. This case is not an exception to the rule. But it is insisted that the negro; in the performance of the duty required of him, voluntarily and of his own accord, without the authority of any of the agents of the road, exposed himself to the danger that resulted in his death, and that this exposure was not necessary to the performance of the duty required. That does not change the rule. Had the negro been put to the service for which he was employed, and that only, this accident could not have happened. And in addition to this, the negro was in the habit, while in the performance of similar service, of getting on the train, and riding from the car shed to the freight depot, and getting off while the train was in motion, and there is no evidence that he had been prohibited or warned not thus to expose himself. “The neglect to exercise authority to forbid a thing, is to permit it.” Gorman vs. Campbell, 14 Ga., 142. Besides this, according to the evidence of the witness Lee, the train, at the' time of the accident, was running at the speed of twenty-five or thirty miles per hour, when the schedule time was but ten miles per hour at the place of the ^accident. This was such culpable mismanagement and neglect on the part of the road as would have made the road liable for the accident, although the negro might not have been in the employment of the road on the terms stated. Let the judgment be affirmed.