Central Railroad v. Mitchell

Jackson, Justice.

The defendant in error sued the plaintiff in error for very serious and life-long injuries to his person — so serious as wholly to unfit him for his regular business, and to disable him for all active work. The jury found six thousand dollars for the damage done him, and the defendant, the plaintiff in error here, being denied a new trial, excepted. The defendant in error was an engineer on the road, and ran the train on the occasion of the calamity, and the case involves the important question of what character of fault on his part will prevent a verdict for him, and this is the main question in the case, upon which the chief justice differs and dissents from a majority of the court. Before considering it, however, it will be necessary briefly to notice the grounds of exception to the rulings of the court.

1. We think that the employee of the company was properly rejected as a juror. To sit on the case he must be “ omni exoaptione mayor.” The servant of the company is not. It is almost impossible, however incorruptible one may be, not to bend before the weight of interest; and the power of employer over employee is that of him who clothes *180 and feeds over him who is fed and clothed. Hence the common law excluded all servants, and our statutes have nowhere altered the rule, and it. should not be altered. A close relative is a less dangerous juror, if not a dependent kinsman, than one who is dependent on his employer. See 3 Chit. Black., side p. 363 ; Bacon’s Abridg. Juries, 2, 347, 5, 353 ; Tidd’s Prac., 852, 3.

2. The declaration is drawn with much fullness and is ample to cover the proof introduced in respect to the injuries received by Mitchell.

3. The expert was competent to testify. Every expert derives much of his knowledge from books as well as from experience, and can give his opinion based upon the knowledge acquired from both sources.

4. If an employee be incompetent as a juror, an employee’s interest or natural bias is matter for legitimate comment before the jury in argument by counsel. Even though introduced by the party thus commenting, it is legitimate to call attention to the bias in order to give more force to what the employee may swear against his master, just as a brother swearing against a party in that relation to him might well be considered as entitled to great credit, and when for him, to less. Not that either could be impeached by the party calling him, but the fact of relationship or obligation or service may be properly evoked by counsel with a view to strengthen or weaken the force of what is testified — the natural heightening or softening the colors of the story without impeaching the integrity of the witness.

5. The charge of the court will always be read as one whole view of the law, when set out in full in the record, and exceptions to parts of it must be considered in the light of all other parts. So construing this charge, it is unexceptionable in the opinion of the entire bench, except in the one particular wherein the chief justice dissents, and which will be hereafter considered.

6. It is for the jury to say whether or not the company *181 had notice of the improper structure or condition of the embankment, and if there be any evidence of such notice, the court not only has the right, but it is his duty, to charge on the legal effect of the notice, if the jury believe from the testimony, though conflicting, that it was given. a

7. Common sense, as well as all law on the subject, and our own Code, make it the duty of the railroad companies to observe all ordinary and reasonable precautions to keep the road in such condition that its employees engaged in running the trains may safely discharge their duty to- the company; and if, by the neglect of the company or other employees, the road becomes unsafe, the employee who is injured by such neglect, unmixed with fault in himself, may recover. Such is plainly the meaning of our own statute. Code, §§-2083, 2202, 3036. It would be exceedingly hard upon one, whose duty it is to run the engine, to deny him redress, when he was faultless in his work, for casualties or injuries to him caused by the builder of the road, or the track-raiser, or other employee wholly disconnected from him and his work.

8, 9. But he must himself be without fault in the matter that brought about the calamity. And hence arises the only point on which the court is divided, and that is, whether the employee must be absolutely faultless in the discharge of his duties wholly disconnected with the catastrophe, or faultless in respect to something which contributed to produce the catastrophe. We think that our own statute settles it, and our own decisions accord with the construction we give the statute.

Section 3036 of the Code reads: “If the person injured is himself an employee of the company, and the damage was caused by another, employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery.” This means, clearly, if the damage was caused by another employee, and was not mused by the fault or negligence of the employee hurt, then he may recover. If he immediately *182 or remotely, directly or indirectly, caused it, or any part of it, or contributed to it at all, then he cannot recover; but though he had been at fault about something wholly disconnected with the transaction, or was at the time at fault about a matter that had nothing to do with the catastrophe, then he may recover. And such is the law in all the books and all the cases bearing on the point. And it must be so. Suppose the man whose duty it is to light the lamps failed to do so and was at fault, and owing to a defective embankment the cars were wrecked, and he injured, could he not recover when his failure to light the lamps had nothing upon earth to do with the catastrophe, and did not cause it or contribute a mite to it?

So in this case, the embankment caved in, filled up the road, and caused the wreck of the cars and the damage to the engineer; and it is seriously contended that he should not recover because he had a brother engineer of the same company on the engine with him, against a rule which allows no one but the engineer and fireman to ride thereon. It is doubtful whether the rule was meant to exclude another engineer of the same company. The reason and spirit of it would seem against such a construction. The engineer was taken up at Bolingbroke, a few miles from Macon. Both of them and the fireman, all swear that his presence did not contribute, and could not have contributed, to the calamity; that the engineer did his whole duty, all he could to prevent it; and yet because he permitted the other engineer to sit on the engine, it is argued that he should not recover. We cannot so see the plain letter of §3036 of our Code, nor the reason and spirit of our law.

In Kenney vs. The Central Railroad, 61 Ga., 590 , this court say in the syllabus, Judge Bleckley writing it and all agreeing to it, “Any substantial fault of an employee, however slight, which contributed to the i/njury for which he sues, will defeat his action.

So, in The Atlanta & West Point R. R, Co. vs. Webb, lb. 586, in the syllabus again prepared by the same judge and *183 approved by the entire court, occur these words: “If his own negligence contributed substanticoll/y to the injury, there can be no recovery ; the doctrine of apportionment of damages on account of contributory negligence not applying in such a case, but the principle of section of the Code 3036 being applicable, which section demands that the employee shall be free from fault or negligence.” Here, as in the preceding case, not only must the fault or negligence cont/ribute to the damage, but it must contribute substantially thereto. Such, too, is the spirit of the reasoning in The Central Railroad vs. Sears, lb. 279 ; McDade vs. Georgia Railroad, 60 Ga., 119 , and 59 Ga., 73 ; Central Railroad vs. Sears, 59 Ga., 436 ; Central Railroad vs. Raney, 58 Ga., 485 ; Marsh vs. South Carolina Railroad Co., 56 Ga., 274 ; Georgia Railroad vs. Goodwin, lb. 196; W. & A. R. R. Co. vs. Adams, 55 Ga., 279 ; Thompson vs. Central Railroad, 54 Ga., 509 ; Campbell vs. A. & R. A. L. R. R. Co., 53 Ga , 488 ; A & R. A. L. R. R. Co. vs. Ayers, lb., 12 ; Sears vs. Central Railroad, lb. 630 ; Georgia Railroad vs. Oaks, 52 Ga., 410 ; East Tenn. V. & G. R. R. vs. Duggan, 51 Ga., 212 ; Rowland vs. Cannon, 35 Ga., 105 . Attention is particularly called to the last case,which is the leading case,and where Chief Justice Lump-kin construes the Code precisely as I do here, and most emphatically rules that the fault or negligence of the employee suing must contribute to the injury in order to bar his recovery.

The issue in this case was, whether the company, through its other agents, servants and employees, was negligent in not having a proper embankment at the point where it fell in, and which caused the wreck, or whether it fell in from natural and unforeseen consequences. The defendant in error had nothing to do with the erection or repair of the embankment, nor did he know of "its condition. He ran by it at night, and only at night, for months before the casualty. The falling in of the embankment solely caused the wreck ; whether it fell from natural causes, free from fault by the *184 company, or from the defective manner of its construction originally, or the defective manner of its repair, was the sole issue. Mitchell had no part or lot in it, and was as blameless about it as a child unborn.

It was for the jury to say what caused it to fall — negligence of the company, or natural causes without their fault. On this point, the testimony is conflicting, the jury settled it, and the presiding judge approves the verdict.

The charge is lucid, able, impartial and without fault so far as we can see, and the judgment overruling the motion for a new trial must be affirmed.

See further 20 Iowa, 562 ; 33 lb., 411; 21 Ind., 52 ; 47 Mass., 416 ; 6 Ohio St., 109 ; Sanders on Neg., 56 et seq.; Sher. & Red. on Neg., 32; Whart. on Neg., Book 11, 29, also chap. IX; 19 Conn., 566 ; 4 Am. R., 271; 6 Am. R., 191.

Judgment affirmed.

Bleckley, Justice, concurred dubitante, but furnished no written opinion.