Rome Railroad v. Thompson

Cobb, J. Mrs. Thompson brought suit- against the Rome Railroad Company and the receiver of the Chattanooga, Rome & Columbus Railroad Company, for damages resulting to her from the death of her husband. At the opening of the trial a motion was made to require the plaintiff to elect which defendant she would proceed against. The court declined to rule upon this motion until all the evidence had been introduced, when an order was passed, adjudging that plaintiff was not entitled to proceed against both defendants, and requiring [29] her to elect the one she desired to proceed against, and to discontinue as to the other. Under compulsion of this order she elected to proceed against the Rome Railroad Company ; whereupon an order was passed dismissing the case as to the receiver of the other company. The trial resulted in a verdict for the plaintiff, and a motion for a new trial was overruled. The defendant excepted- to the refusal to grant a new trial; and the plaintiff by cross-bill assigns error upon the ruling requiring her to elect. 1. When the plaintiff elected under the direction and order of the court to proceed against the Rome Railroad Company, this was in effect a dismissal of her action as to the receiver, and whether a verdict in her favor against the remaining defendant would be lawful or not would depend upon the allegations in the petition and the proof offered in support thereof. As the allegations in the petition were sufficient to make a case of liability against the Rome Railroad Company, independently of the receiver of the other railroad company, and as the evidence on the trial supported the allegations, a verdict in favor of the plaintiff against the Rome Railroad Company was lawful and will be upheld. 2. The effect of the court’s compelling the plaintiff to elect to proceed against one of the defendants only, was to reduce the trial to a controversy between the plaintiff and the defendant against whom she elected to proceed. It was necessary, however, for the judge in his statement of the case to the jury to give a history of the case from the pleadings; and there was no error in his explaining how the case was originally begun against two defendants, and was then on trial under the court’s direction and order against one defendant only; nor was there any error, under the circumstances of this case, where the election was required after evidence tending to show liability on both defendants was introduced, in restricting the jury to the consideration of such parts of the evidence only as threw light upon the question of the liability or non-liability of the defendant against whom a verdict was asked. 3. The plaintiff’s husband lost his life through a defect in a platform which had been erected as a part of a contrivance [30] for weighing cars. This platform was constructed in such a way as that cars could be carried from the track in the yard upon the track on the platform, and that part of the track upon the platform was so arranged that it could be connected with the tracks at either end of the platform and used as a track merely when the scales were notin use, and it was constantly so used. The section of the track which was upon the platform thus became, when not in use for weighing cars, a part of the track in the railroad-yard. The duty to keep the track in the yard free from defects which would be dangerous to persons rightfully upon its track in the discharge of their duties in the yard would require that the woodwork of this platform be kept free from such defects. Therefore upon whichever company rested the obligation to keep the tracks generally in repair, the obligation rested to keep the platform in repair. 4. The Rome Railroad Company was the owner of the yard and tracks. It rented and gave complete possession and control of them to the receiver of the Chattanooga, Rome & Columbus Railroad Company, in consideration of a stipulated rental in money and an. undertaking by the tenant to do certain switching for the landlord in the yard; but, under the view we take of the evidence, and as found by the jury, the Rome Railroad Company remained bound to keep the tracks in safe condition. The failure to keep in repair the platform which had been let into the track, thereby becoming a part of it, being a failure on the part of the Rome Railroad Company to keep the track in safe condition, and the evidence showing that this failure on its part was negligent, there was a breach of the duty which the Rome Railroad Company owed to the employees of the other company using the yard, and it became thereby liable to the widow of the employee who lost his life as a result of such negligence. 5. The main contentions in this case being whether or not the defective platform which occasioned the death of the plaintiff’s husband was a portion of the track, and whether or not the railroad company was under a duty, relatively to the deceased, to keep this platform in repair, the court committed no error in [31] the way in which such contentions were stated to the jury, and the instructions with reference to these matters were free, from substantial error. 6. That the court instructed the jury that if the railroad company and the receiver were under a joint duty of keeping the tracks in repair, the plaintiff could not recover, can not be complained of by the railroad company. Such instructions, even if erroneous, were not harmful to the railroad company, as the duty owed by it to the plaintiff’s husband was several and independent. 7. The evidence in the case demanded a finding that the platform was a portion of the track in which it was situated, and that the Rome Railroad Company was under the duty of keeping it in safe condition, and that it negligently failed to do so; therefore a charge as to the presumption of negligence arising against the railroad company, though entirely inapplicable to the facts, will not be sufficient to require the granting of a new trial. 8. While some of the charges complained of are not absolutely accurate, they are in the main correct, and when considered in connection with all the instructions given to the jury, such inaccuracies could not have misled the jury, nor resulted in any injury to the defendant. 9. The failure of the deceased, who was not an employee of the defendant, to comply with a rule of the company by which he was employed, requiring a stick to be used in making couplings, even if it had been proven, would not have been sufficient to have defeated a recovery in the case, as his death was produced, not by such a failure, but by a negligent act on the part of the defendant whose duty it was to keep the tracks in repair. 10. As the evidence for the plaintiff made out a case which authorized a verdict, there was no error in denying a nonsuit. The various charges complained of which have not been referred to were not erroneous. No harm could possibly have come to the defendant by the court’s remark in admitting certain evidence that it was “ a circumstance ” to be considered by the jury. There was error in refusing to admit certain evi [32] dence; but as the main fact sought to be established by this evidence was otherwise abundantly proved and practically undisputed, this error was harmless and immaterial. Taking the record as a whole, we find the verdict fully supported by the evidence, and we find no error to have been committed by the trial judge, of sufficient importance to require the grant of a new trial. 11. The plaintiff elected, under the court’s order, to proceed against one of the defendants originally sued ; and having proceeded against such defendant and obtained a verdict, which she is now endeavoring in this court to hold, she will not be allowed to insist here that the court erred in compelling her to so elect. Her cross-bill of exceptions must, therefore, be dismissed. If she had desired to take advantage of the alleged error of the court in requiring her to elect, she should have declined to proceed with the trial, submitted to a dismissal of the entire case, and excepted to the judgment so rendered against her. Judgment on main bill of exceptions affirmed; cross-bill dismissed. All the Justices concurring.