| Ga. | Sep 30, 1910
(After stating the foregoing facts.)
1. The demurrer began with the following language: “And now comes the defendant in the above-stated ease and demurs to the plaintiff’s petition and moves the court to dismiss the same, for the following reasons.” Then followed a series of reasons, each beginning with the word “Because.” "We construe this demurrer to be general in its character and as declaring that the whole petition should be dismissed for certain assigned reasons, and not that certain parts of the petition were insufficient, or that certain allegations were specially demurred to and sought to be stricken therefrom. The exception is to the overruling of the-demurrer as a whole, and the refusal to dismiss the entire petition, not to the refusal to strike any particular part of it. We will, therefore, only deal with the question whether the petition as a whole, together with the amendment thereto, set out a cause of action. Thus considered, we think the demurrer was properly overruled. It does not follow, however, that because we hold that the petition as a whole, should not be dismissed for certain reasons, this adjudicates that each of the allegations sets out a cause of action or a valid right on whjch to base a recovery.
A carrier of passengers is bound to use extraordinary diligence to protect the lives and persons of its passengers. Civil Code, § 2266. What extraordinary care requires depends upon circumstances. One circumstance for consideration in dealing with a passenger is the condition of such passenger, known to the carrier or its agents, or so apparent as to charge them with knowledge. To illustrate: what would be a reasonable time to allow a passenger in vigorous health, and in full possession of his faculties, to alight from a car might not be reasonable for a lame or blind passenger, or one disabled by disease. If the carrier or its agents know of the infirm or disabled condition of a passenger, this is a circumstance to be considered in determining what extraordinary care requires in this regard. As to persons who are not passengers, as, for instance, a person who is seen to be crossing a railroad track by the servants of the railroad company engaged in running its approaching train, the condition of such person as to age, feebleness, deafness, or other disabling cause, if known or apparent to them, would be for the consideration of the jury in determining what ordinary care required on the part of
In Atlanta Consolidated Street Railway Co. v. Hardage, 93 Ga. 457 (21 S.E. 100" court="Ga." date_filed="1893-10-24" href="https://app.midpage.ai/document/atlanta-consolidated-street-rwy-co-v-hardage-5565493?utm_source=webapp" opinion_id="5565493">21 S. E. 100), Bleckley, C. J., in discussing a case where a woman and child, who were sick, boarded a street-car and were ejected therefrom, said: “If it was a fact that she and her child were sick and the conductor knew it, why should this not go before the jury? If they were sick people, they were entitled to be treated as such, the conductor knowing. of their condition.” It is true that this was said in dealing with a case of ejection, but it treated the sickness of the passenger, known to the conductor, as a circumstance to be considered by the jury in determining what was the proper method of dealing with her and treating her. In Southern Railway Co. v. Reeves, 116 Ga. 743 (42 S.E. 1015" court="Ga." date_filed="1902-12-12" href="https://app.midpage.ai/document/southern-railway-co-v-reeves-5572174?utm_source=webapp" opinion_id="5572174">42 S. E. 1015), it was said: “Ordinarily it is no part of the duty of the employees of a railway company in charge of a passenger-train to assist passengers to alight therefrom; but this duty on their part may arise when the circumstances are such as to suggest to them the nécessity of assistance. Whether in a given case the circumstances were such as to suggest tlie necessity of assisting a passenger to alight is a question to be determined by the jury.” See also Southern Railway Co. v. Hobbs, 118 Ga. 227, 230-231 (45 S.E. 23" court="Ga." date_filed="1903-06-03" href="https://app.midpage.ai/document/southern-railway-co-v-hobbs-5572652?utm_source=webapp" opinion_id="5572652">45 S. E. 23, 63
In the present case, if the plaintiff, knowing of her condition, entered upon the train and suffered pain, which was produced or kw creased by the ordinary and usual motion of the train, this would not furnish her any cause of action. If the company was liable, it must have been because of some breach of duty on its part or that of its agents toward her. If she became worse, so that her confinement was .imminent, and she so informed the conductor and requested that she be allowed to leave the train- at some station before arriving at her contemplated point of destination, in order that she might obtain assistance and be properly treated, the conductor, with knowledge of her condition, could not disregard such request merely because her ticket entitled her to be carried to a station farther on. In view of this situation, he would be bound to use extraordinary care, and if such care required that she be allowed to leave at some intervening station, or that she be assisted in so doing, in view of her condition, and there was a failure of duty in that regard, the company would be liable to the extent of the damages resulting therefrom. The rule is thus stated in 2 Hutchinson on Carriers, § 992: “The carrier, it has been said, is under no duty to turn his vehicles into hospitals, or his employees into nurses. But if an unattended person who is so sick, aged, or otherwise infirm as to be unable to assist or care for himself, be accepted as a passenger, the carrier, if he has notice of the passenger’s condition, is bound to exercise for his safety a degree of care commensurate with the responsibility assumed, and that would be such care as would be reasonably necessary to protect him from injury in view of his physical or mental condition. And if the passenger should be so unfortunate as to become sick while upon the journey, and in consequence less able to look after himself, he would not 'thereby be put beyond the pale of care and protection, and it would be the duty of the carrier, if the passenger’s condition were made known to him, to give him such care and protection beyond that demanded under ordinary circumstances as would be reasonably practicable, with the facilities at hand, without unduly delaying the train or unreasonably interfering with the safety and comfort of the other passengers.” See also, Atchison, T. & S. F. Ry. Co. v. Weber, 33 Kan. 543" court="Kan." date_filed="1885-01-15" href="https://app.midpage.ai/document/atchison-topeka--santa-fé-railroad-v-weber-7886504?utm_source=webapp" opinion_id="7886504">33 Kan. 543 (6 Pac. 877, 52 Am. Rep.
There was no error in refusing, on written request, to charge the jury that if they believed from 'the evidence that the plaintiff “was able to leave the train without the assistance of the conductor, she would not be entitled to recover.” This made the case turn upon the question of absolute ability on the part of the plaintiff to leave the train without assistance, and would have practically amounted to an instruction to find for the defendant, inasmuch as both the petition and the plaintiff’s own testimony showed that she did leave the train without the assistance of the conductor or other agent of the company; although she testified, “.The reason I got off, I was desperate, and didn’t know hardly what to do. I didn’t think I would live, and didn’t think I could get off until I got there. I was about half crazy and in desperation. I didn’t want the child to be born among the passengers, and so I leaped off. Nobody helped me off.”
The court charged as follows: “In other words, the defendant would not in any event be responsible for such pain as she would have necessarily suffered on account of the birth of a child. For pains incident to childbirth, if no more, if not unusual pain, you should find for defendant.” This charge was erroneous. According to the plaintiff’s own statement, her delivery was premature. She contended that this was caused by the motion of the train, but there was neither allegation nor proof that there was any. unusual or negligent motion. Thus, there may have been a premature birth without negligence on the part of the defendant. If so, it is altogether possible that such a delivery may have caused unusual pain, without creating any liability on the part of the defendant. Besides, the expression “unusual pain” did not clearly indicate whether the comparison was to be made between this delivery and former deliveries by the same woman — her testimony showing that she had previously given birth to other children — or whether the comparison was to be with what was usual with other women. The mere fact that a woman under’ such circumstances may have suffered mor.e than usual pain would not prevent a find
The court nowhere gave to the jury any instruction as to the measure of damages, except from such intimations as might be gathered in charges like that just dealt with. Where there is no exact pecuniary measure, but the extent of a recoven-, if any, must he left to the enlightened consciences of impartial jurors, no very elaborate instructions are required; but it would certainly have been better practice for the court to have given the jury some instruction on the subject. Neither did the court instruct the jury as to the law of comparative negligence and the diminution of damages if both parties were at fault and if the plaintiffs fault was not such as to prevent a recovery by her. AYlietlier or not these things alone would necessitate a new- trial, in the absence of a request to charge, the omissions emphasize the harm which may have been done to the defendant by the inaccurate expressions in certain charges which were given.
The conductor testified: “She [plaintiff] said she wanted to get off at the next station, as she was sick. I did not ask her the nature of her sickness, but supposed it was train sickness.” Upon objection, the court ruled out the words, “but supposed it was train sickness.” The supposition of the witness would furnish no evidence of the existence of the fact supposed. 'But in this case, where knowledge on the part of the conductor as to the condition of the plaintiff was involved as affecting the question of .liability and the extent of the damages recoverable, and where tlu: plaintiff sought to prove that he liad knowledge of her actual condition, such evidence was adniissible in behalf of the defendant.
There were some other inaccurate expressions in the charge, besides those dealt with above. Thus, the presiding judge submitted to the jury the question whether the plaintiff, while a passenger, was injured “by the acts of the defendant'company.” At another time he charged that if the plaintiff by the exercise of ordinary care and diligence on her part “could have avoided the injury sustained.” Again, in stating the duty of the defendant company, he used the expression, which was probably rather broad, “in preventing any injury to her.” Still again, he instructed the jury that “for any humiliation or indignities”