Central Railroad & Banking Co. v. Grant

Warner, Chief Justice. This was an action brought by the plaintiffs against the defendant to recover damages for injuries done to them by the running of the cars of defendant, under the 2979th section of the Code. It appears from the evidence in the record that the defendant made a contract with one Names to fill up an embankment in East Macon for twenty cents per yard, the defendant to furnish track, trestle, ears, mules and driver. Names employed the plaintiffs to work on the embankment; the mules, car and driver were under the immediate control and direction of Names, the contractor, and while operating [421] the same for the purpose of filling up the trestle with dirt, the car on which the plaintiffs were, ran off, and the plaintiffs thereby were injured. On the trial, the jury found a verdict for the plaintiffs. A motion was made for a new trial, which was overruled and the defendant excepted. In our judgment, under the law defining the liability of the defendant, as a railroad corporation or company, for damage done to persons by the running of the locomotives or cars, or other machinery of such company, the defendant was not liable, in damages, to the plaintiffs for the injury received by them, on the statement of facts contained in the record. The plaintiffs were in the employ of Names, the contractor; under his supervision and direction, in the use and management of the mules, car and driver. The fact that the defendant furnished the mules, car, driver and trestle, under the contract with Names to construct the embankment, did not make it liable for the negligence or carelessness of Names in operating and managing the same in the performance of Ms contract. The defendant was not running its cars, within the meaning of the law defining its liability therefor, when the injury was done to the plaintiffs, but Names was running the car in the performance of his contract, made with the defendant, in the construction of the defendant’s road, so that the defendant might run his cars thereon, under his own control and direction, and then the defendant would be liable for damage done to persons by the running of its locomotives, cars or other machinery thereon, unless it was made to appear that the company had exercised all ordinary and reasonable care and diligence. Let the judgment of the Court below be reversed.