89 Ga. 16 | Ga. | 1892
1. The testimony .of the plaintiff, formerly Miss Eincher, now Mrs. Lyon, was substantially as follows: On April 6, 1889, she walked a half mile to Holders station, on the O. R. & 0. railroad, part of the way being through the woods, and bought a ticket to Brookes station, about six miles distant. The ticket was exhibited to the jury. She took the train about half-past one o’clock in the afternoon, the conductor assisting her to get on. He did not ask her destination,
Two witnesses for the plaintiff (Smith and Wright)
It is not at all certain, but on the contrary exceedingly doubtful, that the occasion referred to by these witnesses is the same as that to which the plaintiff’ testifies, especially so because she herself does not make the conduct of the conductor by any means so reprehensible as they do, nor does her testimony coincide with theirs as to where the conversation with the conductor began. The strong probability is, that what they saw and heard was at some other time and involving some other lady. The gentleman at Cedartown who said a lady was expected at his house the day the witness told him of the incident on the train could not probably have referred to plaintiff', because she states the visit she was making that day was unexpected.
The material parts of the testimony of the conductor were to the following effect:- Brookes is a flag station at which trains do not stop except to put off or take on passengers. When plaintiff got on the train, he under
In view of the foregoing summary of the testimony, there can be no better way of dealing with the merits of this case than to treat it as if the testimony of the plaintiff presented the exact* truth of what occurred. The jury certainly did not accept the conductor’s version of the matter, and we have no authority to say they erred in this respect. They may have been influenced to some extent by the testimony of Smith and Wright, but we cannot be sure of this. Again, it is very doubtful, as has been seen, whether their testimony relates to the real transaction under investigation, and even if it does, it is more than probable that the plaintiff herself gives the most accurate and reliable account of it. There can certainly be no want of fairness or justice to this lady in accepting her statements as absolutely true. Thus viewed, can the verdict for $2,000.00 be sustained ? We think not. According to her own account, the inconvenience she actually sustained was not at all serious.
The danger was not, and is not, so serious as this language would imply, but there is undoubtedly good reason for the courts to guard against the natural tendency to unduly favor women as litigants. Striving earnestly to look at the case before us carefully and impartially, we cannot avoid the conviction that it affords an instance of this kind, and that the ends of justice require another trial. It is needless to cite the numerous cases in which verdicts for large amounts have been rendered in cases more or less similar to the present one, or to point out the instances in which they have been allowed to stand, or have been set aside. As each case must at last depend on its own peculiar facts and circumstances and be tested with reference to the same, precedents of the kind referred to are of no great value.
2. It being doubtful, as already shown, whether or
8. Complaint is made of the following charge of the court: “If the plaintiff’ purchased a ticket at Holders station to go to Brookes station, and got aboard of the train, if they failed to stop the train—if the conductor failed to come into the car or stop the car according to contract at Brookes station, she would be entitled to nominal damages, if that was brought about by no fault on her part.” It is urged that this was error because Brookes was a flag station, and she should have given notice to the conductor, especially when the evidence showed it was only a few minutes run; and it was error further, because there was no evidence of a contract to stop at Brookes.
The plaintiff sued for an alleged tort, and not for breach of contract. The theory of the action is, that the defendant contracted to carry her to Brookes and land her there, and that its violation of this contract was a breach of its duty as a common carrier, constituting a tort for which she can recover, and in connection therewith, also for the alleged wrongful and tortious conduct of the conductor in ejecting her from the train after passing her station. The above quoted chai’ge was doubtless given upon the idea that the sale of the ticket to Brookes station was an absolute contract by the defendant to stop the train there, with or without notice to do so from the passenger, and that a fail
In a recent Texas case, Gulf C & S. F. Ry. Co. v. Ryan, 18 S. W. Rep. 866, it appeared that defendant in error bought a ticket to a flag station, knowing it was such, and that trains did not stop there “unless some request was made upon the conductor to do so.” It would seem that he bought the ticket subject to the condition that he must notify the conductor of his destination, and failing to do so, it was held he was not entitled to recover. Aside from instances like this, there may be other occasions, which we will not attempt now to specify or enumerate, when the conductor will be prevented, without fault on his part, from ascertaining in time the desire of a passenger to stop at a flag station,
4. In none of the remaining grounds of the motion for a new trial does it appear that any error was committed by the court below, requiring the grant of a new trial. The judgment is reversed solely for the reason stated in the bust head-note. Judgment reversed.