Atlanta, Knoxville & Northern Railway Co. v. Tilson

Lumpkin, J. 1. After a careful examination of the evidence in this case, we are of the opinion that the presiding judge did not err in refusing to grant a nonsuit. The plaintiff testified, among other things, that the conductor gave him orders what to do at the various stations and sidings; that he had to obey orders, or, if he had not done so, he could not have stayed with the road very long;. that at the time of the injury he was acting under such orders in riding on the pilot of the engine at a siding, to see if there were any "monkey-switches;” that "monkey-switches” are hard [401] to see from the engineer’s box, because many of them have no “stand out” on the side of the track; that, being lately employed, plaintiff was not familiar with this siding; that there was a little place on both sides of the pilot, three or four inches' wide and twelve to eighteen inches long, for a man to stand on, constructed for that purpose, and tó furnish a foothold when one went to lift the drawhead in order to connect it with something in front of the engine, “and to ride on when it is necessary to ride in front;” that while thus engaged he was thrown off by a sudden jerk (which the evidence indicated resulted from a defect in the track); that at the time he got upon the engine it was nearly or quite still, and at the time when he was thrown off it was running three or four miles an hour. Whether he was guilty of negligence in getting upon the engine in obedience to the order of the conductor, or in the manner in which he discharged his duty, was a question of fact for the determination of the jury, not to be solved by the grant of a nonsuit. It is true that he said that “it looked to be a very dangerous place to ride.” If asked whether it was not dangerous to couple cars, or to climb up the side of a freight-car on a ladder, or ride on any part of the engine when at full speed, a witness might be compelled to answer in the affirmative. Still it will not necessarily bar a recovery, as matter of law, to engage in an occupation involving some danger, or to occupy a position prepared for the purpose, and which an employee is directed to occupy, unless doing so amounts plainly to negligence, or unless the injury results from a risk which he assumes. While an employee assumes the ordináry risks of a dangerous occupation, it could hardly be said that carelessness on the part of the engineer in the operation of his engine, or on the part of the company in regard to its track, of which he had no notice, was one of the usual and ordinary risks assumed by a “freight hand” in the discharge of his duty, so as to present a legal bar to a recovery by him, under our statute allowing a recovery by an employee of a railroad, who is not at fault, and who is injured by negligence of other employees. Civil Code, §2323. The cases in which it was held that a plaintiff could not recover are readily distinguishable from that at bar, upon an examination of their facts. Thus, for instance, in Roul v. East Tennessee, Virginia & Ga. Ry. Co., 85 Ga. 199 (11 S. E. 558), a servant of a railroad company obeyed the order of a superior servant to [402] mount a locomotive running at a speed of from six to twelve miles an hour. In Mayfield v. Savannah, Griffin & Northern Ala. R. Co., 87 Ga. 374 (13 S. E. 459), the plaintiff undertook to get upon the rim of the pilot of an engine, which was only one and a half inches broad, while the engine was running at a speed of four or five miles an hour. Under the evidence, we are of the opinion that it was for the jury to say whether it was necessary for the plaintiff to have ridden in front of the engine at the time when the injury occurred, or whether he was negligent in obeying the order of the conductor, or in the manner in which he performed his duty. It is not to be determined, as matter of law, that the plaintiff should have refused to obey, and should have run along the track ahead of the engine, instead of getting upon the place prepared for an employee to stand when it was necessary to ride in front. The judge correctly refused a nonsuit; and there was sufficient evidence to sustain the-verdict. 2. One ground of the motion for a new trial assigned error on the following charge: “Now you are instructed that the plaintiff was bound to use only ordinary care, in view of the actual circumstances of the situation. Ordinary care, as I have said, is that care which every prudent man would use under the same or similar circumstances. If the jury believe that, under the circumstances in this case, the plaintiff was exercising such reasonable care as I have defined to you, and if you further believe that he was injured by the running of the defendant’s Cars or engine, and was free from fault, then I charge you that the law presumes that the railroad company was negligent, and are liable in this case; that is, unless they show that the plaintiff was at fault.” The errors assigned in this charge were: (1) It was error to restrict the duty of the plaintiff to only “ordinary care,” whereas the law required that he must exercise both “ordinary care and diligence” to prevent injury to himself; in lieu of the language given, the court should have instructed the jury that the plaintiff was “bound to exercise his own skill and diligence to protect himself;” the language used by the court put a less burden upon the plaintiff than that imposed by law, and consequently was hurtful to the defendant. (2) The charge did not restrict the jury in their finding to conclusions from the evidence 'in the case, but authorized them to make a verdict in favor of the plaintiff from what [403] they believed under the circumstances in the case. (3) The charge excluded from the jury the defense that the railroad company and its other employees were free from fault and negligence, and restricted them to showing that the plaintiff was at fault. (4) It was calculated to confuse the jury. We shall not consider whether this charge .may have been open to any possible objection, but shall only deal with the assignments of error made in regard to it. The first objection is that the court used the expression “ordinary care,” instead of “ordinary care and diligence” or “his own skill and diligence.” We do not understand the assignment as raising a contention that the employee was bound to use more than ordinary care and diligence, or would be prevented from recovering by negligence less than that involved in lack of ordinary care; but rather as to the mere use of the words “ordinary care” without adding thereto skill ox diligence. The court instructed the jury that “if you further believe that he was injured by the running of defendant’s cars or engine, and was free from fault,” a presumption of negligence would arise against the company; and that if he was free from fault, and the defendant was negligent, the latter would be liable; and that if he made out a prima facie ease, the defendant could rebut it by showing either that he was negligent, or that it was free from fault. The terms “ordinary care” and “ordinary diligence” are commonly treated as synonymous or interchangeable, when applied to the same conduct, in cases of injury; and the mere employment of the expression “ordinary care” in a particular portion of a charge, instead of “ordinary care and diligence,” will not require a new trial, especially where the presiding judge defined the meaning of the term ordinary care as employed in the law, and the entire charge showed that there was no peculiar or restricted meaning attached to its use in the particular part to which exception was taken. Central of Georgia Ry. Co. v. Mote, ante, 166 (62 S. E. 164); Goodwyn v. Central of Georgia Ry. Co., 2 Ga. App. 470 (58 S. E. 688). When considered in connection with the entire charge, the portion of it on which error was here assigned was not subject to the criticisms made upon it, and did not require a new trial. 3. Several complaints were made of charges and omissions to charge; but when the entire charge is read as well as the statement of the presiding judge that no requests were made to charge as to [404] the matters involved in the alleged omissions, there was nothing requiring a new trial. 4. The newly discovered evidence was merely impeaching in its character, and tended to show that the pecuniary loss resulting to the plaintiff was not as great as he had claimed in his testimony. The refusal to grant a new trial on this ground will not require a reversal. Judgment affirmed. All the Justices concur.