Matthews v. Raleigh & Gaston R. R.

Cobb, J. When an employee of a railroad company has his choice of two ways in which to perform a duty, the one safe, and the other dangerous, though convenient, he is bound to select the safe method. East Tenn. Ry. Co. v. Head, 92 Ga. 723; Southern Railway Co. v. Harbin, 110 Ga. 808; Quirouet v. Railway Co. 111 Ga. 315. It is true that in the two cases last cited the court had under consideration cases founded upon causes of action arising in the State of Alabama, but the principle ruled is the law of this State. If there is no dispute about the facts, and the only lawful verdict that could be rendered'would be one finding that there were two was in which to perform the duty, the one safe and the other manifestly dangerous, and that the employee had negligently chosen the latter method, then the court would be authorized to set aside a verdict finding otherwise, as was done in the Head and Harbin cases, supra, or to direct a verdict for the defendant, as was done in the Quirouet case. If under the facts an issue arose as to whether there were two ways, or as to whether, conceding that there were two ways, one was manifestly dangerous, and whether in. the latter case the employee chose that method, or whether there -were two methods, one attended with less danger than the other, and the employee chose the more dangerous, then the issues thus-raised should be submitted to a jury, and it would be error to grant a. nonsuit. Central Railroad v. DeBray, 71 Ga. 406 (15), 424. Applying these principles to the present case, the judge erred in granting a nonsuit. Even if it be conceded that the evidence in behalf of the plaintiff established that there were two ways in which the duty, he was • endeavoring to discharge at the time of the injury could be performed, and one of them was safe, the evidence raised an issue as to whether the method adopted by the plaintiff was one that'was manifestly dangerous. It not being at all clear from the evidence that either method -was entirely safe, or which was the more dangerous, it was a question for the jury to determine whether, under the circumstances, in adopting the method which he employed, the plaintiff was free from fault. Judgment reversed. All the Justices concurring.