Carroll v. East Tennessee, Virginia & Georgia Railway Co.

82 Ga. 452

• Court: Supreme Court of Georgia
• Decided: September 23, 1889
• Status: Published

Opinion

Bleckley, Chief Justice.

1. The case was tried at the November adjourned term, 1887, and the motion for a new trial was made during the same term, the hearing of the motion being fixed by order for a day in vacation and then continued to the following May term. Other continuances took place during the May term, each of them being to a particular day. One of these days was June 80th, on which no action was taken with reference to the motion. On July 2d the motion was taken up and continued to a subsequent day in the same month, and on the latter to a still later day, when it came up for a hearing, and the respondent moved to dismiss it because no continuance from the 80th of June to the 2d of July had been granted or entered. The motion to dismiss was properly overruled, because after the May term of the court was reached by duly continuing the motion from the November adjourned term, no further continuance was requisite in order to keep the matter in court so long as the May term lasted. And that term, as we understand the record, was still in progress when the motion for a new trial was finally taken up and decided. The rule as to continuances from day to day in vacation has no application to what transpires in term time. Once in court, the motion remains there until heard or otherwise disposed of. Fixing a time for the hearing, or entering continuances from day to day, is no disposition of it.

2. The court committed no error in granting the motion for a new trial on the 14th and 17th grounds of the amended motion. The most vital question in the case was one of fact, to wit, whether the plaintiff: was negligent in remaining .upon the engine and exposing himself to risk, without taking more active and diligent measures to keep the engineer awake, or urging the conductor to do so, or telegraphing to the master of trains or some other officer to interpose. That the engineer was falling asleep at his post was known to the plaintiff, who was his fireman, some time before the collision happened, and consequently the question of his negligence should not been restricted in point of time to the moment of collision and some minutes previous thereto.

The charge of the court in the 14th ground of the motion was as follows: “If the jury should believe from the evidence in the case that the train on which the plaintiff was as fireman, was approaching another train on the same track, that the engineer of plaintiff’s train was at some distance from the latter train, at his post and awake discharging his duty, that the plaintiff did not know of the approaching train,, and that the plaintiff having finished firing his engine, took his seat on the place assigned to him, and then discovering a train ahead, and that his engine was not slacking and that the engineer was asleep, then I charge you that if the plaintiff’ was injured by a collision which he could not have avoided by the exercise of all reasonable care and ordinary diligence, in the causing of which no fault was • committed by or attributable to him, he may he entitled to recover.”

This might have been understood by the jury as virtually throwing out of the case any and all negligence the plaintiff’ may have been chargeable with until just before the collision took place, and was, besides, an intimation to the jury that the conduct of the plaintiff, if as described in the charge, would not amount to negligence. But for this instruction the jury might have thought, in view of what had already transpired within the plaintiff’s knowledge showing the tendency of the engineer to go to sleep, that it was not énough for the plaintiff’ to see that he was awake and then seat himself at the place assigned to him, but that he ought to have continued to see to it and assure himself that the engineer kept awake. The charge seems obnoxious to both the objections which we have indicated, viz. a too narrow restriction in point of time, and a too wide latitude in drawing to the court and taking from the jury a decision of the question of negligence.

3. The request of counsel for the defendant to charge the jury as set out in the 17th ground of the motion for a new trial, was as follows: “If you find that the said Carroll was an employé of the defendant, and that he subjected himself to any greater danger or risk than his duty and obligations to said company required, and that by reason of said increased danger or risk he has been injured, then the court charges you that he cannot recover.” In view of the testimony in the record, we agree with the court in thinking that this charge should have been given in the terms requested, and without any qualification. If the plaintiff took any improper risk, it was by remaining upon the engine without doing more than he did in seeing that the engineer kept awake, or without appealing to the conductor or reporting by telegraph as it was contended he should have done. If he was in fault in either of these respects, he was negligent; and if negligent, he could not recover. The court, in giving the request in charge to the jury, qualified it by adding after the word “required,” the phrase, “by any rules, which rules had been communicated to him.” This qualification narrowed the charge to a violation of the rules, whereas the plaintiff’s duty to protect himself against his sleepy engineer might be as complete and obligatory without rules on the subject as with them. The jury might have thought that if he had common sense, he ought not, under the circumstances, to have remained passively upon the engine with knowledge that the engineer was going to sleep at intervals, whilst in charge of his engine. Due care in keeping the engineer awake, or if that could not be done, by ceasing to aid in running the train, involved not only the safety of the fireman but that of others, and also the preservation of the company’s property from wreck and destruction.

4. We turn now to the cross-bill of exceptions, in adjudicating upon which we find that the court should have granted a néw trial on two other grounds, to wit, the 2d and 3d of the amended motion. By a standing rule of the company, as may be inferred, reports by its officers and employés were to be made to it of the facts and circumstances attending accidents. This accident occurred on the 8th of Eebruary, and on the 18th of that month the superintendent prepared a report to the general manager on the subject. On the following day (the 19th) a report by the conductor, supported by his affidavit and that of several others, embracing engineer, firemen, flagman, brakeman, and another conductor, the plaintiff himself being one of the affiants, was made, and as we infer was transmitted through the superintendent, and along with his report, to the general manager. The report of the conductor east the whole blame on the engineer, treating all the rest of the crew as faultless. These documents were admitted in evidence on behalf of the plaintiff1, over the defendant’s objection.

Having had their origin many days after the happening of the events to which they related, they were no part of the res gestae of the cause of action on trial, but were mere narrative touching past occurrences. Consequently they do not fall within the principle of the case cited from 33 N. W. Rep. 867, (Keyser vs. Chicago & G. T. R’y Co., decided by the Supreme Court of Michigan in June, 1887.) Meachem on Agency, §§714, 715; Code, §2206. Nor is Carlton vs. W & A. R. R. Co., 81 Ga. 531, a decision upon the question. of their admissibility. As far as that case goes is to suggest that they were not confidential communications, but really even that question was not involved so as to render a decision of it necessary. Hpon principle, we think it clear that these reports were inadmissible; and several authorities which we deem sound are to that effect. In Langhorn vs. Allnutt, 4 Taunt. 511, it was held that letters of an agent to a principal, in which he is rendering him an account of the transactions he has performed for him,- are not admissible in evidence against the principal. A like ruling was made in Reyner vs. Pearson, Id. 662; See also Kahl vs. Jansen, Id. 565. “Any official statement or report received by the corporation or board from one acting as officer, and accepted and adopted by them, is competent evidence against the corporation and those bound by its acts, without further proof of the appointment of the officer; but a report to a corporation or board is not made admissible in evidence against it by the mere fact that it was received and accepted by it, except for the purpose of charging it with notice of the contents.” Abbott’s Trial Evidence, p. 31, §62.

“ An admission by a corporation of a fact or liability, duly and properly made, is of course evidence, against it; but a municipal corporation, by accepting, that is, by receiving, the report of a committee of inquiry, does not admit the truth of the facts stated therein, and such a report, though accepted by the vote of the corporation, is not admissible in evidence against it. 1 Dillon Munic. Corp., 3d ed. §305, (earlier editions, §242.)

The case of the Vicksburg & Meridian R. R. Co. vs. Putnam, 118 U. S. 545, was cited and relied on in behalf of the plaintiff. The opinion was delivered by Mr. Justice Gray, who devotes but a single sentence to the question, merely saying: “ The reports made by the superintendent to the board of directors in the course of his official duty, were competent evidence, as against the corporation, of the condition of the road.” Looking to the statement of facts prefixed to that opinion, we find it represented that “ the plaintiff offered in evidence two printed reports made by the supei’intendent of the road to the board of directors, one'in 1877, which stated that in the portion of the road where the heaviest traffic was done, there were about thirty-five miles of iron that had been ran over for more than twenty-five years, and required the closest attention to prevent accidents ; and the other, made in 1880, stated that there were twenty-five miles of track made of iron forty-two years in service, and now almost entirely worn out. The defendant objected to the admission of these reports, because they were not sworn to under examination in court; because they had no reference to the place of the accident, but only to the general condition of the rails; because they could not bind the defendant as admissions; and because the information of the superintendent as to the condition of the road was derived in part from the reports of subordinates. But the court overruled the objections and admitted the reports in evidence.” According to this statement, the reports were printed, and in all probability had been promulgated by the company as official documents adopted by and proceeding from it. If so, this would make them utterances of, and therefore admissions by, the company. Moreover, had they not been printed and promulgated, they would have tended to show that the company had notice of the condition of its road previously to the occurrence of the injury in controversy, and would have been admissible to charge the company with such notice, under the rule as above quoted from Abbott. The reports now in question do not relate to the condition of the road, and have no bearing upon any question of notice to the company of any fact whatsoever prior to the injury, their contents consisting wholly of historical matter touching past conduct and its consequences. So far as appears, the truth of the reports was never in any way passed upon, adopted or affirmed by the corporation ; nor were the documents printed, issued or circulated by it as true. It surely cannot be sound law to hold, that by collecting information, whether under general rules or special orders, and whether from its own officers, agents and employes or others, a corporation acquires and takes such information at the peril of having it treated as its own admissions, should litigation subsequently arise touching the subject-matter. As well might it be considered that any and every suitor who sends out agents to discover witnesses and collect facts touching his rights or duties regarding a pending or prospective lawsuit, is to be met at the trial with the communications made by or to such agents, as admissions made by himself. Can it be possible that a collector of historical materials is to be held responsible for the truth or accuracy of them without himself having indorsed or promulgated them as true ?

The case of Krogg vs. Atlanta & West Point R. R. Co., 77 Ga. 202, was also cited and relied upon. The evidence held competent in that case consisted of declarations made by the general manager, some of them relating to the condition of the track, and some to the cause of the accident, which he attributed to too much elevation of the superstructure on one of the curves of the road. It would seem that the admissibility of this evidence was put by the court partly upon the ground that the general manager represented the corporation in making the statements, (which, by the way, were not made as reports to the company or any superior officer, but as mere oral declarations,) partly upon the ground that they were embraced in the res gestae, and partly upon the ground that they showed his knowledge, and therefore the knowledge of the corporation, as to the improper construction and condition of the road before the accident. We need not comment upon this case further than to observe that its facts are so different from those of the case in hand that the one cannot be a precedent for the other. An officer so high in power and position, and so comprehensive in his duties, as is the general manager of a railroad, might possibly be competent to affect the company by his admissions or declarations, when like admissions or declarations proceeding from subordinate officers or agents, or from more servants' and employes of .the company, would be attended with no such admissible quality. Certainly this distinction could well be drawn where the declarations of subordinates, etc. were made to the company some time after the transaction to which they relate, and were elicited for the sole purpose of its own information, and for use in guiding its own conduct.

5. We see no substantial objection to the question propounded to the witness Gallagher, as set out in the 6th ground of the amended motion, the object being to show what, according to the usage and practice of the company, would have been the result had the plaintiff' reported by telegraph to the train-dispatcher that the engineer was falling asleep at intervals while on his engine. In order for the jury to determine whether such a report would have been available to terminate or lessen the plaintiff’s danger, it would be necessary for them to know what action would probably have been taken upon such a report. Perhaps the question to the witness could have been better shaped, but on the whole we think the court erred in not allowing the witness to answer it.

6. As there has to be another trial, we forbear to express any opinion on the correctness of the verdict. And as to the grounds of the motion not already discussed, we merely say that we have discovered in most of them no error whatsoever, and in none of them anything sufficiently material to require correction. Several of the grounds involve, directly or indirectly, the question of duty on the part of the plaintiff to inform himself of the rules of the company and abide by them, whether they had been communicated to him of not. We agree with the trial judge that the undertaking of the plaintiff' in his written application to the company for employment* to “ study the rules governing employes, carefully keep posted and obey them,” did not extend to any unknown rules not promulgated to him by the company. Brunswick & Western Railway vs. Clem, 80 Ga. 540-1, 5th head of the opinion. The rules of a railway company stand to its employés as laws for the regulation of their conduct, and all such laws ought to be promulgated in some reasonable, practical way. If they are written or printed, each employé should either be furnished with a copy or informed where to apply for it, or at least where he might call and read the rules or hear them read. Of course actual knowledge otherwise acquired would suffice, but it is clear to us that an employé is bound by no rule of his company which has neither been communicated to him by it, nor brought to his knowledge otherwise.

Judgment in the main case affirmed, on the cross-bill of exceptions reversed.