7 Ga. App. 507 | Ga. Ct. App. | 1910
Wheeler brought a suit against Deen, alleging, that the defendant was the. owner of a chartered public ferry known as Mann’s ferry, on the Altamaha river, and operated it as such, and transported persons and property across the river at said ferry for hire; that in crossing the river at said ferry on December 1, '1907, the plaintiff’s horse was knocked from the ferryboat and drowned, and he was thereby damaged in the sum of $250; that the ferryman was intoxicated, and that -the horse was thrown from the flat by reason of the carelessness, negligence, and improper conduct of the defendant’s agents in charge of the ferry; and that the ferryboat had been allowed, by the negligence of the defendant’s agents, to go into a bight, instead of to the usual landing place. The petition was amended by the allegation that the realty where
At the conclusion of the judge’s charge to the jury, he instructed them, in the presence of the defendant’s counsel, and without objection, that they could seal their verdict in an envelope (which was delivered to them by the judge in the presence of the defendant’s counsel), and could deliver it to their foreman, after which they could disperse, and let their foreman return the verdict into court the following morning. After making their verdict, and before returning it into the court, the jury dispersed, and they remained dispersed during the night. On the following morning they reassembled for the purpose of returning their verdict in open •court, and the defendant, before the verdict was received, objected to its being received, and made a motion to declare a mistrial. This motion was based upon the ground that the jury had dispersed after the verdict had been made and before it had been returned, and that neither the defendant nor his counsel had any knowledge of the permission given to the jury to disperse, or consented thereto. (It appears that the defendant was not present during any stage of the trial.) A mistrial was also asked for the purpose of continuing the case, upon the ground that the allowance of the amendment, which had been offered at the conclusion of the judge’s charge and just before the jury retired, set up new, distinct, and additional grounds of negligence, and the defendant had had no opportunity to meet the amendment. The judge overruled the motion to declare a mistrial, and caused the verdict to be published and entered upon the minutes. Tho jury found a verdict of $250 in favor of the plaintiff. The defendant then filed a motion for a new trial, which was overruled. The writ of error challenges the
1. The judge did not err in allowing the amendment to the petition, of which complaint is made. The original petition alleged that the ferry was run and operated by Deen, his servants, agents, and employees. The amendment to that paragraph of the petition alleged that in addition to being the owner of the ferry, Deen was the owner of the land on the south or west side of the Altamaha river, where the ferry lands, and permitted Felix King to operate the ferry. The amendment does not set out a new cause of action, but is rather a mere amplification of the statements of the plaintiff’s original cause of action. Either the fact that Deen was the owner of the ferry, or that he owned the land on the stream where the ferry landed, would subject him to liability for the carelessness or bad conduct of whoever might be operating the ferry. The plaintiff’s right of action, if anjr, depended upon the provisions of section 622 of the Political Code. This code section holds the proprietors of ferries liable for neglect of any person whom they may permit, either as servant, agent, or lessee, to operate the ferry: “Any proprietor of any bridge, ferry, turnpike or causeway, whether by charter or prescription, or without, or whether by right of owning the lands on the stream, are bound to prompt and faithful attention to all their duties as such; and if any damages shall occur by reason of non-attendance, neglect, carelessness or bad conduct, he is bound for all damages, even if over and beyond the amount of any bond that may be given.” In the original petition the plaintiff charged that the defendant’s liability attached by reason of the fact that he was a proprietor under charter. The amendment simply gave an additional reason why he was liable, — that he was the owner of the land on the stream. Dnder the ruling in Printup v. Patton, 91 Ga. 422 (5), (18 S. E. 311), the owner of the land on which a public ferry is situated, unless the ownership of the ferry be separate from that of the land, is liable for negli
The second amendment allowed by the court was, we think, like-1 wise germain to the original petition. It certainly was not hurtful to the defendant, even if it was immaterial. It simply attempted to set up the fact (as the conclusion of other negligent acts permitted by the defendant as alleged in the petition) that the bight into which the negligence of the ferryman permitted the ferryboat to be carried was full of twigs and bushes, which struck and seared his horse. The amendment merely stated an additional contributing cause leading up to the drowning of the horse. The allowance of this amendment was not error, and even if it were, could not afford the defendant any ground for complaint, because, ferrymen being common carriers, an allegation of negligence, in a suit brought to recover damages for the loss of property accepted for shipment, was unnecessary. Civil Code, §2264; L. & N. Railroad v. Warfield, 129 Ga. 473 (59 S. E. 234).
Furthermore, the motion to declare a mistrial for the purpose of continuing the case, upon the ground that the defendant was unprepared to meet the statements of the amendment, was fatally defective, in that it was not made to appear why the defendant was not as well prepared to controvert the averment then as he would be at the term to which he asked that the case be continued. In fact, in the motion for mistrial, no reference is made to any specific averment as being one that he was not prepared to meet.
2. The defendant moved for a mistrial upon the further ground that the court had permitted the jury to disperse in advance of the publication of the verdict, without his consent, or the consent of his counsel. If this statement were fully verified, we would hold that it was error to have thus deprived the defendant of the right of polling the jury. Ordinarily each party to a cause has the right to poll the jury, in order to ascertain whether the verdict returned into court is the unanimous expression of each and every juror’s sworn judgment as an unbiased trior. The polling amounts to nothing if the jury has been dispersed and mingles with the outside world, because the juror may have been subjected to such influence after the dispersal as to make his' opinion then not the,, opinion of the sworn juror, but merely the opinion of a member of the community in general. For this reason this ground for a mistrial lias been upheld in this State in every case where the jury has been permitted to disperse without the consent of counsel, or parties, and to mingle with the public during the interval between the time when the verdict was reached and the time when it was returned into court. The real question, then, is whether or not the defendant’s counsel (the defendant himself not being at court during the trial) consented to the separation of the jury; or rather whether the consent of counsel must not, upon grounds of public policy, be implied, under such circumstances as those disclosed in
3. Several exceptions are taken to the judge’s- charge to the jury, which are addressed to the single point that he used such terms as “carelessness” and “inexcusable neglect.” We have carefully examined into these exceptions, and we find no error in the language used by the judge. If this were an action against a railroad company to recover damages for an injury caused by negligence, the position of counsel for the plaintiff in error upon this point might be well taken. The case before us, however, is based upon a special statute against a ferryman, and as the terms “carelessness” and “bad conduct” which were used by the court are employed in the very code section itself, their use can not be said to be improper.
The assignment of error which complains that the judgé did not give the jury any instructions as to the degree of diligence-which the 'defendant was bound to exercise we find to be unsupported in fact, because the judge expressly charged the jury that the defendant, as a common carrier, was bound to use extraordinary diligence. Hone- of the exceptions to the charge, embodied in the motion for new trial, are meritorious.
4. We confess that we were at first in doubt as to the excep-tion, presented for the first time in the bill of exceptions, in which ■error is assigned upon the following charge of the court: “I charge you in this case that if the plaintiff is entitled to recover at all, he is entitled to recover the sum of $250, and it will not be necessary for me to give you any further instructions on the subject of damages.” If the complaint had been specifically made that the judge intimated an opinion upon the evidence, in violation of section 4334 of the Civil Code, in stating that the amount the plaintiff should recover, if he recovered at all, would be $250, our duty to grant a new trial might perhaps be mandatory. However, as to this, see Dexter Banking Co. v. McCook, ante, 436 (67 S. E. 113). The language of the exception, however, is not'sufficiently specific to present this point. All that can be gathered from the exception
5. Upon a careful review of the evidence it is plain that the jury were authorized to find for the plaintiff. The evidence established the ferry to be a public chartered ferry and the ferryman a common carrier. As such, he can not make a special contract limiting his liability of the kind mentioned in the evidence. The defendant, as owner of the land, was responsible for all of the negligence of any person operating the ferry with his knowledge and consent. The jury could well infer that the ferryman was intoxicated, that his assistant was incompetent, that the appliances used in transporting the boat were unsuitable and insufficient, and that the carelessness and unskilfulness of the ferryman and his assistant, for whose acts the defendant was legally liable, were responsible for the boat’s being carried beyond the usual landing place, and so suddenly stopped in this unsuitable place as to jar or knock the horse overboard. As there is no dispute as to the value of the horse in question, we find no error in the judgment of the trial judge approving the verdict. ' Judgment affirmed.