Ferguson v. Columbus & Rome Railway

75 Ga. 637 | Ga. | 1885

Hall, Justice.

The plaintiff, an infant of ten years of age, instituted her suit against the defendant to recover damages for an injury she suffered by reason of its negligence in leaving the turn-table, belonging to its road, exposed in a public and frequented place in the city of Columbus, without enclosing it by a sufficient fence or securing it by locks or other fastenings. During the progress of the trial, she proposed to ask a witness who had reached the spot a few minutes after the injury occurred, and who had testified to circumstances tending to show that the turn-table was the instrument by which she was hurt, such as the appearance of fresh, warm blood, and pieces of fiesh, torn from ber limbs, being on the machine and in the pit under it and on the ends of the rails—“ What did the plaintiff say at the time you got there as to how she was hurt?” This question was objected to by the defendant and ruled out by the court. This is the first error alleged. At the close of the plaintiff’s testimony, the defendant moved a non-suit, which was granted, and to this judgment exception was also taken and error alleged thereon.

1. Was the testimony sought by the question ruled out a part of the res gestae? The declaration of the party, if it did not accompany the act, was so near thereto in time as to be free from all suspicion of device or afterthought, and as to form a part of the transaction, and was. therefore admissible in evidence. Code, §3773 and citations. In the Augusta Factory vs. Barnes, 72 Ga, 217, we recently examined th s question with care, and came to the conclusion that declarations made a half hour after-wards by a child similarly injured, and who died from the effects of the injury, were so near in point of time thereto as to exclude all suspicion of device or after-thought, and were admissible as part of the res gestee. We are well satisfied with the conclusion reached in that case, and cannot conceive that the death of the party makes a difference in the application of the rule. The testimony is original, and the declaration is not a mere declaration, but being contemporaneous, or nearly so, with the act, becomes a part thereof, and is adistinct, though not altogether an independent fact. The ruling out of this question was error; it excluded from the consideration of the jury testimony which, we are to infer, would have thrown light upon the transaction they were investigating, and which might have prevented the non-suit afterwards avoided.

2. Although the judgment should be reversed for this error, yet we do not place our opinion upon that alone. Negligence is a question peculiarly cognizable by the jury, and where there is evidence tending to show this, and which is not rebutted by the same evidence, a non-suit should not be awarded. There was proof in this case going to show that the plaintiff was injured by the defendant’s turn-table, and that it was negligently kept; that it was in an exposed public place, much frequented; that it was not secured by fastenings; when the witness, Tice, got there on the fatal Sunday morning, he saw two or three little boys at the turn table, and one of them was pushing it around. He made them “ get away.” The fact that the little girl was sent to the defendant’s yard by her mother, to carry breakfast to an older brother, who was left there to protect the property of the company from depredation and injury, does not necessarily show that she was voluntarily placed in a situation of peril; nór could such a conclusion be drawn from the knowledge of her father that she had been sent there on the errand above mentioned. He was the night-watchman at the depot, was kept awake all night long, and had promised to give such supervision to, and take such care of, the defendant’s property at this yard as he could without entirely depriving himself of sleep during the day; he had gone home for his breakfast, and in his absence had left his son to watch and act for him. The cases which forbid the awarding of a non-suit, under the circumstances in proof here, are quite numerous. Mercier vs. Mercier, 43 Ga., 324; Phillips vs. Brigham, Kelly & Co., 26 Id., 617; Chisholm vs. Atlanta Gas Light Co., 57 Id., 28; Biggers vs. Pace, 5 Id., 172; Hankerson vs. S. W. R. R. Co., 59 Id, 593; Jones vs. Tift, 63 Ga., 488; Cook vs. W. & A. R. R. Co., 69 Id., 619; Neff & Co. vs. Broom, 70 Id., 256. It would be going a great way to presume that either the mother or father supposed that this little girl would visit, much less ride on, this turn-table. She was sent with her brother’s breakfast, who does not appear to have had any care of the turn-table, but whose business it was to watch on Sunday morning and to prevent mischievous persons from breaking the glass in the windows of the company’s building and thieves from stealing and carrying away its crossties.

Judgment reversed,