S U PR E ME COU RT O F GE ORG IA,
MARC H TER M, 18gs. NUMBER 11, (Western Circuit.)
FROM GWINNETT SUPERIOR COURT.
GEORGIA, CAROliNA &NORTHERN RAilWAYCOMPANY
I
PLAINTIFF IN ERROR,
YS .
SARAH M. HOLL M AN,
DEFENDANT IN ERROR.
BRIEF OF ERW IN, COBB & WOOLLEY,
N. L. HUTC HI NS, Jr..
Atto rneys for Plai ntiff in !::rror

GEORGIA,CAROLL.\A & NORTHERN RAILw Av CoMPANY, Plaintiff in Error, vs. SARAH M. HALLMAN, Defendant in Error.

SuPREME CouRT, ~ARCH
TERM, I895 No. I I.
WESTERN CIRCUIT. FROM GWINNETT SUPERIOR
CouRT.

BRIEF FOR PLAINTIFF IN ERROR.
I.
An employee cannot recover from a railroad company unless he shows himself free from fault contributing to the injury; and where suit is brought for tbe homicide of an employee the plaintiff must show in like manner that the employee whose death is the cause of action was likewise free from fault.
Railroadvs. Head, 92 Ga. 723. Railroad vs. M;J.loy, 77 Ga. 237. Prather vs. Railroad, So Ga. 427. Railroad vs. Folks, 76 Ga. 527. Railroad vs. Roach, 64 Ga. 635. Railroad vs. Kenny, 58 Ga. 485.

II.
An employee who knowingly uses defective or unsuitable machinery cannot recover when the injury results therefrom.
Railroad vs. Ray, 70 Ga. 674. Railroad vs. Bishop, ~Q Ga. 465. Railroad vs. Johnson, 55 Ga. I33

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III. Where two lines of conduct are open to an employee, one safe, the other dangerous, and the employee voluntarily pursues the one that is dangerous, it is such fault as would bar a recovery. ~<liln>ad ,vs. H.ead,, 92 .Ga. 72 3.
IV. The plaintiff ought not to recover unless the evidence shows that one or more of the a~ts of negligence alleged in the declaration have been proven. Railroad vs; Nash, 81 Ga. 585. Railroad vs. Oaks, 52 Ga. 410.
v.
Until the employee shows himself without fault there is no presumption of negligence against the company.
Railroad vs. Roach, 64 Ga. 635.
VI. Plaintiff in error contends that the evidence shows no negligence on the part of the company, and the evidence does not show the plaintiff's husband was free from fault and that therefore there was no presumption of negligence, and consequently the verdict for the plaintiff was contrary to law.

ABSTRACT AND ARGUMENT.
FOR PLAINTIFF IN ERROR.
Sarah M. Hallman brought her suit in Gwinnett Superior Court against the Georgia, Carolina & Northern Railway Company, and, the Raleigh & Gaston Railroad Company and the Seaboard & Roanoke Railroad Company, alleging that the said two companies last named were the lessees of the first named company and were operating the railway of the same and that her husband, Luther E. Hallman, who was employed by the defendants as a Conductor of their construction t.ain, was on November 7th, I892, killed by the negligence of said defendants, being at the time entirely free from fault. The acts of negligence alleged were :
1. That defendants failed to provide said Conductor with a1 caboose car havip.g aa elevation upon the roof from which the movement of the train could be observed from the inside of the car.
. 2. That the car provided was unsuitable for the use of the Conductor, being a box car having doors and windows, but no elevated place on the roof, being what is known as a shanty car.
3 That the death of her h'usband was caused by the use o{ a
defective bumper, and that while the train was backing said bumper, on account of its defective condition, pulled out from the car to which it was attached and derailed the car upon the top of which the Conductor was standing and threw him to the ground between the cars, killing him instantly.
4. That the attention of the defendants had been called to the defective condition of the cars and bumper, and they _hc..d failed to repair the same.
5. That a few hours before the accident the train had been examined by the Car Inspector of the defendants who had told the Conductor that the train was in good repair and safe to go ahead at the rate of twenty or twenty-five miles an hour, when in fact said train was not in safe condition as reported.
The evidence established the following state of facts: On November 7th, 1892, Hallman, as conductor in charge of a material train consisting of eighteen or twenty flat cars loaded with ballast, and four shanty cars in the rear of the train, left the station

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of Statham on the G. C. & N. Road, bound for Inman Park, Atlanta. Said train was supplied with the usual number of train hands and in addition thereto the construction force was on board of the flat cars, distributed along the train, making it possible and practicable for signals to be carried forward from the rear to the engine. ThF. train proceeded on its way until it had passed a point about a mile south of Gloster Station when a bumper on one of the shanty cars pulled out, and the train parted. The bumper has attached to it a piece of iron with a hole in the end called the tail rod. In order to secure a bumper in position, the tail rod is placed on and between the floor timbers of the car and a pin is placed through a hole in the floor andfloor timbers, going through the hole in the tail rod, thus fastening it in position. The pin had broken which loosened the tail rod and allowed the bumper to pull out, parting the train.
When the bumper pulled out, Hallman with th~ train hands pro,:
ceeded to place it in position again. The bumper was lifted up to its place and the tail rod pushed back and a hand was sent in the car to place the pin. Hallman superintended the work. There was difficulty in getting the pin to go through the tail rod; the tail rod was jammed back between the timbers but the hole in the tail rod was not opposite the place where the pin would fall through. (See testimony of E. M. Kenard, York Garrett and Ike Crawford). This was.apparent from the position of the bumper on the outside. (See testimony of N. C. Robinson and E. M. Kenard). Hallman was informed not only by the position of the bumper that the pin was not in the tail rod, but was also informed by the hands who were placing the pin that it was not in the tail rod, and was advised by them before starting to have the engineer pull on it to see if it was safe. Unless the pin is through the tail rod the slack of the train wilL pull the bumper out. (See testimony of York Garrett, E. M. Kenard, A. P. Lane, and Ike Crawford). Hallman instead of protecting the train and repairing the bumper properly as he could have done; sent his flagman forward to flag an approaching train from the south and with the bumper in the condition described. took his position upon the top of the shanty next to the one the bumper: had been pu1led out of, and signaled the engineer to back to Gloster. While the train was backing to Gloster to take the siding, and just a short distance from the siding and while backing

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down grade, the bumper pulled out again and the end of the tail rod fell to the ground and stuck between the crossties which lifted the car Hallman was on and threw him between the cars and he was killed by being run over by the trucks.
The immediate cause of his death was the bumper pulling out which had been put in the car under his direction and which be knew both by direct information imparted to him by others and by observation of the position it was in that it was not only not safe: but absolutely dangerous to run the train in its then condition. His exposed position on top of the car also contributed to his death. If he had been in the car on which he was standing or if he had been in the car in rear of the train his life would not have been lost.
There was no necessity for him to have started his train in the condition in which he used it. There was no train approaching from the North and the train from the South was stopped and could have been held until the bumper was properly placed in position; and if it had been necessary the train could have been fully protected both in front and in rear and the necessary repairs made no matter how long it would have required. (See testimony of E. M. Kenard).
The Conductor who places himselt upon the top of a car unnecessarily takes a place of danger, whicll is especially true in this case. (See testimony of A. P. Lane, 0. L. Cloud, C. S. Jones and E. M. Kenard).
Hallman had succeeded one Harding as Conductor of this train, had been running the train about ten days only, but he was thor-
oughly qualified for the position. (See testimony of R. 0. Hard-
ing and J. J. Jowers.
The Court awarded a non-suit as to the two companies described as lessees and the jury rendered a verdict for five thousand dollars against the remaining defendant.
The defendant Itlade a motion for a new trial which was overruled by the Court and the defendant excepted.
It is contended by plaintiff in error that the evidence failed to establish the acts of negligence alleged. The following summary shows the substance of the testimony on each point and the names of witnesses whose testimony is r~lied on.

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I.
FAILURE TO FURNISH CABOOSE.
Caboose not usual or necessary on material or work trains. (Testimony of C. S. Jones and A. P. Lane).
II.
CAR PROVIDED UNSUITABLE.
The car furnished to Hallman had no observatory. (Testimony of R. C. Hallman). Caboose cars are not used on material, work or construction trains. When a train is backing the Conductor is supposed to be in the rear car and to give his signals from the rear platform or the windows which are carried forward by the train hands. While he can see better from the top of the car, it is not necessary for him to be there. Train was in a cut when the accident occurred, and the only way the signals could be seen was by being carried forward by the train hands. The Conductor could not be seen by the engineer" even on top of a car. Shanty cars are used in material trains like this one. Caboose is used on freight trains. All shanty cars on this train had side doors or windows and the rear car had windows. (Testimony of C. S. Jones).
All the shanty cars harl doors and windows and one had a platform. Signals could have been easily given from any of these, from the side doors or windows, or from the platform of the one which had a platform. (Testimony of A. P. Lane).
III.
BUMPER DEFECTIVE.
The bumper was not defective. It was complete and perfect. The defect was in the way it was put in, not being caught by the pin. After the accident the pin was found in its proper place but it had not gone through the tail rod. The pin was in position but the tail rod was not. (Testimony of C. S. Jones, A. P. Lane, E. M. Kenard, Ike Crawford and York Garrett).

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IV.
CONDITION OF CARS REPORTED AND FAILURE TO REPAIR.
The cars were not in good condition .apd had been reported by Hallman's predecessor to roadmaster and engineer of roadway, but the condition of the cars could be seen by Hallman. (See testimony of R. C. Harding).
There was no defect in the car out of which the bumper pulled. (Testimony of A. P. Lane).
v.
TRAIN INSPECTED AND SAFETY GUARANTEED ..
Cars were inspected about three hours before accident at Statham and reported to Hallman as safe to run twenty or twenty-five miles an hour. (Testimony of A. P. Lane).
If a caboose was the proper character of car to be used and the shanty was not, the fact was known to Hallman whom the evidence shows to have been a competent railroad man and thoroughly qualified for the business, and complaint cannot be made by him or his widow claiming under him if his death was caused by his knowingly using an unsuitable and improper car.
All defects in the car and bumper were discernable by Hallman as shown by the uncontroverted testimony and if his death was thereby caused there is no right of action.
"Nhile the Car Inspector may have guaranteed the safety of the train as it was when inspected by him as alleged and proven, he did not and could not guarantee its safety after it had be..:ome unsafe by the failure of Hallman to replace the bumper properly when its unsafe condition was plainly apparent to Hallman. The train was safe except the bumper which Hallman himself had failed to properly secure in position.
The evidence failed to establish any negligence on the part of the defendant, and the evidence showing that Hallman was at fault the verdict is contrary to law and should be set aside.
Hallman was at fault: I. In not having the bumper properly secured when his attention was called to its unsafe condition.

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2. In moving the train when he knew the bumper was not properly secured and that its condition made the use of the train unsafe and dangerous.
3. In placing himself-upon the top of th.e car when there was no necessity for his taking this exposed position.
4 In placing himself upon the top of the car when he knew or must have known that the condition of the bumper made this under the circumstances a peculiarly perilous position.
ERWIN, COBB & WOOLLEY, N. L. HuTcHINs, JR., Attorneys for Plaintiff in Error.