Central Railroad & Banking Co. v. Sims

Bleckley, Chief Justice. 1. It was certainly error to give in charge to the jury the rule taken from. Gainesville, Jefferson d& Southern Railroad vs. Wall, 75 Ga. 282, to the effect that when a cow is. killed, both the fireman and the engineer must testify, in order to exculpate the railroad company. That principle had no application to the present case, and the judge seems to have found difficulty in discerning the application for himself, and referred the question to the jury, in all of which we think he was incorrect. 2. The ground of the motion for a new trial that the verdict was contrary to evidence and without evidence to support it, we think was well-taken. The plaintiff below was an employé in the service of the company, upon a [755] gravel-train, and was at the place where he had engaged to work; and the train being in motion there was a jerk, and in attempting to step from one car to another, or when about to make the attempt, he was thrown from the car. We think that such jerks, upon a train of that character, must be expected to occur, and that the risk of employment embraces them. It would certainly be impracticable to keep up the repairs of a railroad upon any very strict rule in regard to jerks in the movement of the construction trains. Employés upon such trains must incur these risks; they are apparently incident to the business. And we think that, under the evidence in this case, there was nothing unusual in the management of this train, and that the injury that resulted to the plaintiff below was simply an occurrence that took place in the ordinary course of business; and that there can be no recovery upon the evidence as we find it in the record. . The ruling of these two grounds is. enough to dispose of this case for the present. There are some other objections to the charge of the court, which we do not deem it material now to review; because the charge, if the case should be tried again, may be different from what it was on the former trial. The judgment refusing the motion for new trial is overruled. Judgment reversed.