Stirk vs. The Central Railroad and Banking Company of Georgia, and vice versa

Supreme Court of Georgia1888-01-30

79 Ga. 495

Summary · law.co

Holding. The judgment granting a nonsuit was reversed and remanded to allow the case to proceed to trial, as the evidence presented jury questions regarding the railroad's negligence and the employee's comparative fault.

Martha Stirk sued the Central Railroad and Banking Company for damages resulting from her husband's death. Her husband, an employee working as a train hand, was killed when struck by a bridge while standing on top of a railcar. The trial court granted a nonsuit in favor of the railroad, and Stirk appealed. The evidence indicated that the railroad had introduced a car into its train that was taller than its standard cars, and the husband was not warned of this increased hazard before being ordered to work on top of the car.

The appellate court identified two questions that should have gone to the jury: whether the railroad was negligent in using the taller car without warning employees of the danger, and whether the employee could have avoided the accident through ordinary care. The court also addressed evidentiary issues regarding testimony about the dimensions of the car involved in the incident. Additionally, the railroad raised a procedural objection based on the plaintiff's failure to pay costs from a prior nonsuit in the same matter, but the court rejected this defense as improperly raised.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an employer is negligent in introducing equipment of unusual dimensions without warning employees of increased hazard
Whether an employee can recover despite contributing negligence through failure to exercise ordinary diligence
Proper scope of evidentiary admission regarding identification of accident equipment
Procedural requirements for payment of costs following a prior nonsuit

Procedural posture

The plaintiff appealed a trial court judgment granting a nonsuit in favor of the defendant railroad company, and the defendant cross-appealed on procedural grounds.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford, Justice.

Martha Stirk brought her action against the Central Railroad and Banking Company to recover damages for the homicide of her husband. After she had submitted her evidence, the court granted a nonsuit; and to this she excepted. The evidence submitted in behalf of the plaintiff in the court below was, in substance, as follows: Stirk was an employé of the Central railroad, and was a train hand. At Smithville, while the cars were en route, a car belonging to the Green Line Company was introduced into the train. It was a different kind of car from those ordinarily used by the Central Railroad, and was higher. As the train was approaching Cuthbert, the conductor’s line, which reached from the cab to the engine, became entangled, and Stirk was ordered to go forward and release it. He went forward as directed, and while on top of the Green Line car, the car passed under a bridge, and he was knocked off by the bridge and killed.

Two questions are made by the evidence. The first is, was the company negligent in introducing into its train a car higher than the ordinary cars of the company ? If its ordinary cars were one upon the top of which the employés could stand without danger in passing under this railroad bridge, and if the company introduced into its train a car higher than its ordinary cars, and. gave no warning to its employés of the condition of such car, then the jury might infer that the company was negligent therein, because of the increased hazard and danger to its employés. Another question is, whether or not the deceased could have avoided the consequences of the defendant’s negligence, if there was any, by the use of ordinary diligence. These were questions for the jury.

The evidence showed that at the time this man was killed, several persons attached to the train were looking-in his direction, and seemed to apprehend no danger to him, because they gave him no notice or warning; and it is not probable that lie himself anticipated the danger.. He had been accustomed to pass under the bridge daily,, and knew its height.

Another exception relates to the admission of certain testimony of one Booth. Booth testified that one Jones, had pointed out the car upon which Stirk was standing; when he was struck by the bridge; and that he (Booth), had measured the car. Counsel for the railroad objected to this statement wholly. Counsel for the plaintiff in error, contend that the entire statement ivas admissible, as show-, ing that the car measured was the car upon which Stirk was killed. The court admitted the testimony to the extent of showing that the witness measured a particular car pointed out by Jones; but declined to admit it for the purpose of showing that it was the particular car upon which. Stirk was killed. We think the court did right in-so ruling. We think the evidence was admissible to the extent and for the purpose allowed by the court, and that it ought to have been confined to that purpose.

There is a cross-bill of exceptions by the railroad company on the ground that the plaintiff had been nonsuited in a former suit for the same cause of action, and had failed to pay the costs as required by the statute before the commencement of the present suit; and that the court below permitted the plaintiff to pay the costs in the former case while the latter case was pending. We think that the provision of the code which requires that a party who has been nonsuited shall pay the costs incurred in that suit before he can bring another suit, is a provision for the benefit of the officers of court, and not for the benefit of the defendant; because the defendant, where there is a nonsuit, cannot be made liable for the costs. We. think, furthermore, that this is a matter which should have been pleaded in abatement at the first term of the court, so as to put the plaintiff on notice. • ■

, In the case of Crawford vs. Cate, 20 Ga. 69, this com.it held that, where an appeal had been entered, notwith’ standing the costs had not been paid as required by the statute, the appeal should not be dismissed. See also the case of Lyner vs. Jackson, 20 Ga. 773. The case of Langston, exr, vs. Marks, 68 Ga. 435, seems to rule this case; because in that case the parties, over objection, were allowed to pay the costs in the court below; and this court held that this was right.

So we reverse the judgment of the court below as complained of in the original bill of exceptions, and affirm the judgment as to the cross-bill.