Fraser v. Charleston & Savannah Railway

Hall, Justice. This is certainly a doubtful, if not a very weak, case for the recovery of damages, in consequence of an injury alleged to have been done by an employé of the railroad company, charged with being negligent in the perform [225] anee of his duty connected with the running of defendant’s train. The evidence is not clear upon several points essential to a recovery. It is somewhat doubtful whether the plaintiff was injured by a person on board the defendant’s train, or the train of another company, both of which used the same track; circumstances in proof render it more probable that it was done from the train of the defendant than from that of the other company; it is still more doubtful if the injury was done by an employe acting within the scope of his duty, or if it was the result of his personal wrong while acting outside of his authority; it is even doubtful if the plaintiff had a right to be where she whs when the damage was done to her. But as inferences favorable to her might have been drawn by the jury from the evidence, if left unexplained or uncontroverted, upon each and all of these essential points, and as it is for them to say whether the servants of the company were negligent in the management of the train, we think, under the well-settled rules of this court upon this subject, the non-suit should not have been awarded, and that the case should be re-instated. “This is not quite a case for a non-suit, though its neighborhood to that class seems very near,” as was said by Bleckley, J., in Vielters vs. The Atlanta & West Point Railroad Company, 64 Ga., 308. Judgment reversed.