Hudson v. Georgia Pacific Railway Co.

Simmons, Justice. 1. The facts of this case will be found in the official report. Hnder those facts, we think the court erred in awarding a nonsuit. We think the court should have submitted to the j ury the question whether the plaintiff was acting in the line of his duty in giving the signal to the engineer, or whether he was assuming to act in the capacity of conductor in giving the signal without being specially directed to do so at that time by the conductor, the testimony showing that he had orders from-the conductor on several other occasions to give the signal when it could be done from his side of the cab, and could not be done from the conductor’s side. The court should also have submitted to the jury whether the plaintiff was guilty of contributory negligence or not. These are questions of fact for the jury to pass upon, and not for the court. If the evidence had shown only that the plaintiff was thrown from the car by a sudden jerk, and a nonsuit had been granted, we would have sustained it under the ruling in the case of the Central R. R. & Banking Co. v. Sims, 80 Ga. 749. There it was held that, “Where a gravel or repair train is [207] managed as usual, and the jerk complained of is only such as would be expected to occur on a train of that character in doing its work, the employees engaged on it or attached to it take the risk as incidental to the service, and if injured by the jerk, cannot recover of the company.” The facts in this case are different from the facts in that case. There the only negligence on the part of the company complained of was, that the train “slackened up a little, and plaintiff started to step across from the car he was on to the car the chest was on, reaching out to catch hold of the chest to assist him in getting over; and just then the engine gave the train a big jerk, throwing plaintiff between the cars and knocking him to one side of the track.” This we held to be a risk incident to the service in which the employee was engaged. In the present case, the plaintiff testified that it was his duty to give the signal to the engineer not to stop at the station which the train was approaching; that he gave the signal, and that the rules of the company required the engineer to answer the signal; that the engineer failed to answer it, and he continued to give the signal; and that the engineer, without answering it, turned on steam and thereby caused a sudden and unusual jerk, which threw the plaintiff out of the car. If it was the rule of the company that the engineer should answer the signal, the plaintiff'had a right to rely upon his doing so before taking precautions to guard himself against the jerk which he knew would be produced by the engineer’s turning on steam. If the engineer had answered the signal, it is probable that the plaintiff would have ceased givingthe signal and returned to his seat before steam was put on, and thereby saved himself from the injury which he received. Taking all the facts together, we think the plaintiff ought to have been allowed to go to the jury thereon. 2. There was no error in refusing to allow the plain [208] tiff to answer the question set out in the first ground of the motion for a new trial. It is claimed by counsel for the plaintiff: that, it having been shown that the plaintiff’ was an expert in such matters, he should have been permitted to answer it. Whether he was an expert or not, we do not think he ought to have been allowed to give his opinion upon the propriety of his own conduct on that occasion. We do not think that even an expei't, who is a pai-ty, should be allowed to do that, on such a question. 3. We make no ruling on the point whether a motion for a new trial can be made in a case where a nonsuit has been awarded, as counsel for the defendant in error did not insist upon it. We can only say that we do not approve the practice. A motion to reinstate the case, or a bill of exceptions to this court, is the better practice. Judgment reversed.