Central Railroad & Banking Co. v. Kenney

Bleckley, Judge. 1. Let the word blame, as here used, be understood to mean negligence, or the omission of that degree of diligence to which the party is legally bound. Where a railroad employee has been physically injured while on duty, he cannot recover of the company if both were to blame, or if neither was to blame, or if he was to blame and the company not; only where he was not to blame and the company was, is he entitled to recover. Of course, the blame of a co-employee, or of any officer or agent, is treated as that of the company itself. Concerning one class of cases, namely, that class in which, as in the instance before us, the injured party shared directly in the act which resulted in his own wounding, the rule as to the burden of proof is as follows : After proving the fact and degree of the injury, if the plaintiff will show himself not to blame, the law then presumes, until the contrary appears, that the company was to blame; or if he will show, on the other hand, that the company was to blame, the law then presumes, until the contrary appears, that he was not to blame. So that, in order to make a prima facie case, and change the onus, he need not go further than to show by evidence one or the other of these two propositions: either that he was not to blame, or that the company was. ' The company, ’ taking at this stage the burden of reply, can defend sue-' cessfully by disproving either proposition. The disproval of both is not necessary; but until one or the other shall be overcome, the defense is not complete — 56 Ga., 586. It follows that where an employee of a railroad company sues for a personal injury sustained by him in consequence of a hand-car leaving the track, upon which car. he was riding, and the running of which he controlled, he must, in order to entitle himself to recover, show, affirmatively, that he was free from fault, or that there was negligence by the [490] company sufficient to have eaused the run-off. It takes this much to make a prima facie case; after which, the plaintiff will still fail, if it appear’, from all the evidence taken together, either that he was not free from fault, or that the company was not negligent. 2. The person injured being a “ section-master ” (a position requiring the daily use of a hand-car), and having some years’ experience in his business, and the declaration alleging that the'injury was caused, in part, by a defective handcar, which car, according to the evidence, was, at the time, in use by him, and under his control, he cannot recover without making it appear that he did not discover the defeet in time to avoid exposing himself to the danger, or that the defect was of such a nature as not to be discoverable in the reasonable and ordinary exercise of diligence in the course of his duty — 55 Ga., 133, 279. 3. Under the evidence, if the run-off was occasioned by the shortness of the flange on the wheels of the car, there, is no suggestion that this defect was less known to the] plaintiff before the calamity than after; or if it was due to j displacement of one of the wheels, a like displacement of the same wheel had occurred previously, on the same day, which the plaintiff had corrected to his own satisfaction. The true condition of the defective wheel at the time of the disaster was better known to him than to the company. If it appeared to him safe, no reason is suggested why the company could have known or suspected it to be unsafe. If the defect was such as to deceive human judgment, the company, as well as himself, stands excused for not discontinuing the use of the car on account of it. Whatever diligence he exercised in seeing to the apparent safety of the vehicle, goes to the credit of the company as well as to his own credit. When, with so much experience, and with such opportunities for forming an opinion, he pronounced it safe, he was acting for and representing the company. His mistake, if without good excuse, might render the com [491] pany liable to others, had others been injured; but, of course, it should not make the company liable to him. 4. "While negligence is a question of fact for the jury, it, like all other questions of fact, is subject to be examined by the court on a motion for new trial; and where the verdict is contrary to evidence, or without sufficient evidence to support it, a new trial will generally be granted. Judgment reversed.