Atlanta & Charlotte Air Line Railway Co. v. Tanner

Jackson, Chief Justice. 1. Many questions of interest arise in this case, and all of them.have been discussed with rare research and distinguished ability by the counsel. One point presented by the learned counsel for defendant in error is new to us, and we shall leave it where he placed it, in the form of a query, because it is unnecessary to decide, as other points, in our judgment, control the case in favor of defendant in error. The bodily hurt for which damage is sought was inflicted in the state of South Carolina, but the contract by which Tanner, an employé'of the company, was hired as conductor of the train was made in- Atlanta, Georgia,- and the negligence of the company on which mainly he relies for a recovery, also was omission of duty in Atlanta by the company, in failing properly to inspect the machinery of the train. In such.case,, does the law of the place of the actual injury to the person suing prevail, or. the law of the place of the contract and of the prior negligence, which was the real, or at least the prominent rea [390] son of the injury? We leave it undecided, because, whether the law of South Carolina or of Georgia be applied to the facts made in the record, the result must be the same. On this point, without reference to the fact that the real negligence occurred in Georgia, see Hutchison on Carriers, 143-4, and Dyke vs. Erie Railroad Company, 45 N. Y., 103, cited by defendant in error, and 49th Ga., 107, and Story’s Confl. of Laws (6th ed.), 307, cited by plaintiff in error. It will be observed that the case in 49th Ga., does not cover the point made here, for it does not appear in that case where the suitor’s husband was employed, nor that the injury was caused by negligence in this state ; but the question here, for the reason above stated, is left open, with the remark, for which alone I am responsible, that the position of defendant in error, under the particular facts here made, strikes the mind with great force. 2. Assuming then that the law of South Carolina governs, the question arises, first, what laws of that state will govern here? The answer is to be found in the case cited above from the 49th Ga., 107, where it is held that to determine what are the rights of the parties the law of Alabama was the guide, but as to the mode of procedure to ascertain those rights, the laws of this state alone should be applied. 3. What then are the rights of the parties under the South Carolina law? No state regulating their rights has been cited, and it is conceded that none exists. The common law must, therefore, b'e considered the law of that state. What is the common law on the subject matter of the rights of the parties here, in this case, under the facts disclosed by this record, and reported at the head of this opinion ? Shall the common law, as we understand it in Georgia, be applied, or the common law as interpreted and adjudicated by the courts of South Carolina prevail? In a liberal spirit of comity, without considering whether the adjudications there would harmonize with the views [391] of this court on what is the common law on the facts here made, we shall apply the construction of that law by the courts of our sister state to the facts here, and thus ascertain the common law prevailing in South Carolina and apply it as the law of South Carolina, so as to give it full force, as there understood and ruled by its highest court, to determine the legal rights of the parties in this case. The common law in respect to the liability of the master to the servant, as ruled in South Carolina, is to be found in 1st McMullan, 385; 15 Rich., 201; 8th Ib., 173, and the case of Gunter vs. The Graniteville Manufacturing Company, not yet reported, but a transcript of which, duly certified and agreed as correct, is before us. That being the last adjudication of the law applicable in South Carolina, where this injury occurred, is the rule of law governing the facts here, and eliciting out of those facts the rights of these parties. It is there decided that a recovery may be had if the injury “ resulted from defective instruments or machinery with which the employé is furnished to do his work.” And in that case the court further held that “the liability of the employer for defective machinery does not depend on the fact that the defects are latent and unknown, but it depends on the question of proper care in selecting this machinery, and in keeping it in repair; ” and in summing up and laying down the rule of law, the court further- decides that, “ the rule of law is the one adopted — a medium line which holds the employer responsible for that part of the work, which falls to him either personally or through his agent, i. e., the proper selection and superintendence both of his operatives and his machinery. He is a guarantor that all reasonable and proper care shall be exercised in the performance of these duties, and his liability should be limited to a failure to meet his obligations in this respect.” Squaring this case by this rule of law, the question is, was the plaintiff in error hurt by the charge of the court? [392] The fact on which the defendant in error relied for recovery mainly, is that the officer of the company, Johnson, whose duty it was to inspect the cars, its machinery, and especially the fixed ladder by which the top of the car was reached, neglected his duty, and that the latter was defective, and its defect caused the fall of the conductor and his injury from the train. The charge of the court was to the effect that if Johnson was a head officer of one department of the road' — -to-wit, that of inspecting cars and machinery to see that all was right before starting, and that this inspection duty or office was devolved on a head officer as a branch of business distinct from that of conductor, and if the defect could not have been as easily discovered by the conductor — if he did not have as good opportunity of doing so, and his failure to discover it was not his fault, if it was of a kind he could not have seen and ought not to have seen, and therefore used the defective ladder without fault himself, then he could recover ; if the truth was otherwise on any of these points of facts, then he could not recover. And further, even if the ladder were defective, and he was ignorant of the defect without fault, still if he could have avoided the injury by the use of ordinary diligence, then he could not recover. This charge of Judge Hillyer certainly does not approach the rule laid down by the South Carolina court in the case of Gunter vs. The Grániteville Manufacturing Company in extent and compass against the employer, and the plaintiff in error, the employer here, has not been injured thereby, and therefore it cannot complain. For, under the rule laid down in that case, if this machinery was defective — and the ladder by which it is the servant’s duty to ascend the car is part of the machinery of the train- — then, it being the duty of the employer to select and superintend it — he being a guarantor of its having been properly inspected and súperiñtended — then the em.' ployé could recover, if without fault himself. It is clear, [393] therefore, that if error was committed, it was not to the prejudice of the plaintiff in error, and he was not damaged by the charge or the refusal to charge. 4. In all judicial proceedings in this state — in the mode of procedure to ascertain the rights of parties here — the settlement of controverted facts is for the jury; and under the rule laid down in the 49th Ga., p. 107, in the case of The Selma, Rome and Dalton Railroad Company vs. Lacy, the law of this State will be applied to its mode of procedure to arrive at the true facts. Under the charge of the court, the jury found the facts to be as contended for by the employe — the defendant in error, and the presiding judge having approved that finding, it must stand, for there is no abuse of discretion anywhere on his part. Judgment affirmed. Cited for plaintiff in error: 50 Ga., 251: 49 Ib., 107; 15 Ib. 349; 30 Ib., 146; 62 Ib., 241; 64 Ib., 696; Story’s Confl. Laws (6th ed.) 307; Pierce on Railroads, p. 360; 15 Rich, 201; Pierce on Railroads, p. 361, 365; 100 U. S. R., 214; Pierce, 371, 373; Wood Mas. and Svt. 766, 770, 784, 786, 788, 800, 801, 802, 811, 821, 825, 693, 744; 46 Mo., 16; 2 Am., 477; 20 Md., 212; 25 Ib , 462; Perry vs., Cent. R. R. Co., 66 Ga., 746. For defendant: Hutch. on Carriers, 143-4; 45 N. Y., 103; 1 McMullan, S. C., R., 385; 15 Rich., 201; 8 Rich., 173; Gunter vs. Graniteville Man. Co., S. C. case not yet reported; 10 Peters, 18; 10 Otto, 226, 221-2, 213, 218, 219; 93 Ill., 302; 2 Thomp. on Neg., 981, 984; Cooley on Torts. 557, 561; 2 S. L. R., 123; Wood on Mas. and Svt., 687, 781; Add. on Torts., 603, note 1; Wharton on Neg., 212, 232; 73 N.Y., 38; 8 All. 441; 53 N.Y., 549; 80 N.Y., 46; 29 Ark., 97; 110 Mass., 240; 46 Mo., 163, 59 Ib., 495; 55 Ill. 492; 53 Iowa, 595; 3 H. and C. 511; 16 Q. B., 332; Pierce on R. R., 379; 10 Gray, 274; 34 N. J. L., 151; 30 Ga., 146; 1 Ib., 195; 30 Ib., 151; 48 Ib., 569; 51 Ib., 583, 644; 58 Ib., 107.