Georgia Pacific Railway Co. v. Mapp

Blandford, Justice. We have carefully considered this case, and are satisfied, from the facts as disclosed by the record, that this accident resulted solely from the negligence of the defendant in error, the plaintiff in the court below. He was charged with the duty of unloading certain cars on a sidetrack belonging to a gas company. He was warned, twelve or fifteen minutes before the accident occurred, that he must not move these cars, for if he did there would be danger of somebody getting hurt; and yet, disregarding this warning and disregarding his duty, which was to keep .the cars in the position in which he found them, he ap [636] plied liis crow-bar to this train of cars on the side-track and set them in motion, and they moved down the sidetrack, past the danger post and to the othér track, upon which was the train of the Georgia Pacific Railway Company, and in consequence of this the collision occurred. The allegations of negligence on the part of the railway company are, that it was running its train at too great a rate of speed, and that the bell of the locomotive was not rung. The evidence shows satisfactorily, I think, that the train was not going at more than about four miles an hour; but whatever may have been the speed, and whether the bell was rung or not, this accident did not occur by reason of the speed, or by reason of the fact that the bell was not rung, but it occurred by reason of the fact that the defendant in error, the plaintiff below, set these cars on the sidetrack in motion; and he is himself chargeable with all the damages that resulted therefrom. The train of the Georgia Pacific Railway Company was where it had a right to be; it had a right to run upon the track upon which it was running, and at the speed at which it was running, at the time this accident occurred. If it had run at a much higher rate of speed, the accident would not have occurred, because it would have passed the switch before the cars on the side-track could have rolled down to the point of collision. A lower rate of speed would have caused a greater accident, because the cars on the side-track would have had an opportunity to roll down farther upon the other track, great injury would have ensued and many lives might have been lost. And if this be true, to hold that the plaintiff should recover Would be to sanction, we think, a great outrage ; it would be to sanction his own gross carelessness and negligence. The code declares that where one causes the injury himself, he cannot recover. If he could have avoided the accident, it was his duty to do so; where he caused it, clearly there was no case of contributory negligence, and no case of any kind. We do not see in this record any [637] negligence on the part of the railway company, or its servants or agents. It was performing a lawful business, running its cars over a track over which it had a right to run,— a track belonging to the Western and Atlantic Railroad Company, but over which this company had permission to run its trains; it was performing its business carefully, so far as we can discern from the record; and we do not think the plaintiff in the court below ought to have recovered anything in this case. We think, therefore, that the court below erred in not granting a new trial; and the judgment is reversed.