Stephens v. Central of Georgia Railway Co.

(After stating the foregoing facts.) We are of the opinion that the court erred in granting a nonsuit. When this ease was here before- (Central Ry. Co. v. Stephens, 141 Ga. 645, 81 S. E. 900), the evidence being. substantially the same as it is now (excepting certain illegal evidence on account of the admission of which over objection the case was remanded for a new trial), it was held: “Whether or not the case made by the evidence introduced by the plaintiff was sufficient to withstand a motion for a nonsuit without the admission of the evidence referred to in the preceding headnote, with such evidence admitted for the purpose of showing notice to the conductor of the dangerous situation of the flagman, in connection with evidence of an order on his part for the flagman to leave the cab to set the switch, the case was clearly one in which the refusal of a nonsuit was proper.” The evidence which this court held to be illegal and inadmissible was, as the plaintiff testified, a remark made by the conductor in the hearing of the injured flagman to a third person: “I told you I would stop the cab on the trestle and Stephens [the plaintiff] would walk out and kill himself.” This evidence, of course, was not introduced on the last trial; and the question is whether or not, with the ruling before us that under the evidence on the former trial a nonsuit should not have been granted, it was proper to grant a non-suit under practically the same evidence, with the objectionable statement just quoted eliminated.

That which rendered material the remark of the conductor, now eliminated from the record, was the light shed by it upon the question of the conductor’s knowledge of the dangerous place at which the cab had stopped. But we are of the opinion that, with this remark eliminated, it was still a question for the jury to decide whether the conductor knew that the locality was dangerous. The element of knowledge on the part of the conductor of the dangerous situation of a person attempting to alight from the cab was still an element in the case. It was not eliminated by the elimination of the remark attributed to the conductor by the flagman in his testimony. The elimination .of that remark might *542have had the effect of weakening the evidence of the conductor’s knowledge of the situation, but it still left circumstances which the jury could consider in passing upon the question as to whether the conductor did actually know that the caboose had stopped over the trestle. While there is no direct evidence that the conductor knew of the situation, the jury might have inferred that the fact of his being the conductor of the train and passing over the trestle gave him a knowledge of the character of the situation or made his ignorance of it negligence. If he did know of the location of the caboose at the time he ordered the flagman to leave it, the case would be the same as it 'was with the objectionable remark of the conductor in evidence. We are therefore of the opinion that the court should have submitted the case under proper instructions to the jury, and that it was error to grant a nonsuit.

Judgment reversed.