Richmond & Danville Railroad v. Worley

Bleckley, Chief Justice. 1. The motion to strike from the declaration .the allegations touching incompetency of the agent of the company who was in charge of the locomotive, and allegations touching the bad condition of the locomotive itself, was a novelty in Georgia practice, though such a practice may prevail elsewhere. Had these allegations been the only charges of negligence, a motion for a nonsuit would have been in order. But as other negligence was alleged and there was evidence touching that for consideration by the jury, there was no cause for a nonsuit even had the motion been for a nonsuit instead of calling for purging the declaration. 2. According to the testimony of the plaintiff himself, the inexperience of the fireman who had charge of the locomotive was known to him at the time he, the plaintiff, commenced serving with the fireman in passing over a switch and entering a siding for the purpose of connecting the locomotive with cars standing thereon. The incompetency of the fireman to properly handle and run the locomotive is attributed to his inexperience, and this inexperience being known to the plaintiff was certainly a better reason then for declining to serve with him than it would be now for making the company pay damages for an injury to the plaintiff traceable to that inexperience as its cause. If the plaintiff’ intended to exact of the company more experience at the throttle of the locomotive than he found there on this occasion, why did he not make the exaction then, either positively if there was opportunity, or, if there was none, negatively by declining to unite with this inexperienced person in attempting to perform the particular act of service in the performance of which the injury was sustained. If an employee knowing that his co-employee is a “ green hand” nevertheless co-operates with him without objection, what ground has he for complaining that his fel 88 low-servant was a green hand? Under such circumstances the negligence of the company in furnishing such a fellow-servant is waived, but the waiver does not extend to any negligence of which the fellow-servant himself may be guilty. If he fails in any respect to come up to the measure of diligence which under the circumstances he ought to exercise, consent to serve with him would not cut off the right to recover for any injury occasioned by that negligence. 3. We have examined the evidence with great thoroughness and minuteness. It fails to show that the locomotive was not in safe order for the purpose for which it was being used, or that its condition caused or contributed to the plaintiff’s injury. Such slight evidence on this subject as the record contains could not possibly uphold a verdict against the company for damages. This being so, it was error to submit to the jury any question whatever on that subject as a basis of recovery. The whole merits of the ease, so far as the right to recover is concerned, are involved in three questions : Was the fireman negligent in working the locomotive? Did that negligence occasion the injury? If so, did the plaintiff exercise due care for his own safety? The determination of these questions would be decisive of the real merits of the controversy in respect to the liability of the company. The court erred in not granting a new trial. Judgment reversed.