Supreme Court of Georgia, 1892

Devine v. Savannah, F. & W. Railway Co.

Supreme Court of Georgia · Decided August 27, 1892 · Bleckley

89 Ga. 541; 15 S.E. 781

Counsel

Lester. & Ravenel, D. W. Rountree and S. W. Hitch, by brief, for plaintiff., Erwin, duBicnon & Chisholm, S. T. Kin&sbery and W. G. Brantley, for defendant.

Opinion of the Court

*541 Judgment affirmed.

Dissenting Opinion

Bleckley, C. J.,

dissenting. Where in a situation of peril produced, not by the servant, but by other servants for whose acts the master is made responsible by statute, the servant (a locomotive engineer) received a signal of danger warning him not to proceed, and immediately after that signal was given a signal of safety was displayed which invited him to go forward, and whilst both signals were in sight and being continuously displayed together the engineer went forward and a collision ensued in which he lost his life, whether he was negligent or at fault in so acting on contradictory signals held out to him by the company to guide his action, is a question of fact for the jury, it not appearing that the rules of the company instructed him how to interpret confusing or contradictory signals, or what to do when a second signal might seem to cancel the first and when neither of them was discontinued or withdrawn. In my opinion, it was error to grant a nonsuit. The engineer lost his life by mistake of the company, and his widow lost her case by mistake of the court.

The flagman testified, in brief: There were five minutes time between the first and second sections. The first section carried a green light on each side of the engine as a signal to indicate that another train followed it, having the same schedule rights. The first section was due at 73 turnout at 5.46 p. M., the second at 5.51, and the second reached that point at 5.51. As the second section approached the west end of the switch, the engineer put on the air-brakes and the train was slowing down, but I cannot say what the speed was when we hit the other train. I knew that the next turnout was number 73, and that we would meet a freight-train there if it was on schedule time. I felt the air-brake put on and that the train was slowing down, and was going to see if we passed the freight-train there, and as I- was in the act of opening the door the crash came. I did not remember seeing or hearing any signals before or at the time of the accident. At the time of the collision I was at the rear end of the rear coach of the second section.

Lester. & Ravenel, D. W. Rountree and S. W. Hitch, by brief, for plaintiff. Erwin, duBicnon & Chisholm, S. T. Kin&sbery and W. G. Brantley, for defendant.

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