| Ga. | Jul 15, 1874
1. The Code was adopted as the law of the state upon the matters included in it, by the legislature, on the 19th of December, 1860, to take effect on the 1st of January, 1862, which date was afterwards changed to 1st January, 1863, when it became the law of the state. Subsequently, by the convention of 1865, and again by the convention of 1868, it was ratified and made the law of the state, (subject to alteration by the general assembly,) and it was declared, in effect, to supersede all previous legislation inconsistent with it. The result is, that any legislation previously to the Code, in harmony with it, or inconsistent with it, was no longer the law of the state, and the repeal ofothe third section of the act of 1856 could have no effect, save to repeal any portion of that section not inconsistent or'identical with the provisions of the Code on the same subject. Whether there was anything in that section not superseded by the Code it is not necessary now to inquire; suffice it that it left the'Code as it found it— the law of the land — and if the defendant in error had any right of action under the Code, she has it still, notwithstanding the act of 1869. Nor is there, in our judgment, anything in sections 2082, 2202 and 3036 obnoxious to the 26th section of the bill of rights of the constitution of 1868, prohibiting special legislation, etc. These sections cover a large class of our people — they relate to persons engaged in a peculiar and dangerous occupation, standing in peculiar relations to the pi incipal, their fellow employees, and to the public. The legislation does not relate to the railroad companies, because they are such, but because of the peculiar and special nature of their business. The law, for this reason, give them special privileges — they are specially protected from trespassers— their employees are exempted from various public duties, etc., etc. It might, with just as much force, be said that laws as
2. We do not care to go over the elaborate argument of Judge Benning in the case of Davis & Redding vs. The Central Railroad Company, 17 Georgia, 336. That was an unanimous decision of this court in the conformity of these laws to the constitution requiring suits to be tried in the county of^the residence of the defendant. The argument is full, exhaustive, and in our judgment, conclusive. The position it takes has ever since been acted on as the law of this state, and we approve of and adopt it.
3. Whilst the case of a widow suing for the homicide of her husband does not come within the express letter of section 3426 of the Code, since the injury is not to her person or property, yet we are clear that it is within the spirit of the law. The object and intent of the law evidently is to have the case tried where the fact transpired — where the witnesses reside. This is better for both parties, and insures a more complete investigation. Neither party is at any disadvantage. The railroad company has its agents and employees on the spot, and the plaintiff, often — nay, generally, a stranger there— also has no special advantage, save convenient access to those acquainted with the facts. Under the view taken of the locality or residence of every railroad company by this court in the case of Davis & Redding, before referred to, the question of the location of suits against it is exclusively of legislative discretion, and there is nothing in the nature of the case placing the locality in the county where its principal office of business is situated. Hence as the case of the suit of a widow for the homicide of her husband comes, as we have said, clearly within the spirit of section 3426, we are of the opinion this action was properly brought in the county of Greene.
4. The Northampton tables are notoriously an accurate and comprehensive compilation of facts as to the probabilities of life, acted upon by courts and insurance companies, for many
5. Our law requires a plaintiff plainly and distinctly to set forth his cause of action. And if one bring a' suit based on one set of facts, it is obviously unfair to permit him to recover on another dropped out incidentally, and perhaps by way of defense. The right to amend is very broad, and if parties desire to modify tlieir cases, it is unfair to do so in a speech to the jury. Here was a definite act of negligence stated and relied on in the declaration. That other acts bearing that designation dropped out in the proof, did not make out the case, and the court should have charged as requested.
6. The error in this charge was, that it put the case wholly on the question as to who was at fault for the speed with which the cars approached the switch. -Leaving out of view altogether the other question whether the defendant below was at fault as to the switch, the jury were told to find for the plaintiff, if the increased speed was the fault of other employees than the plaintiff’s husband.
7. What the witness may .have said to others, and at other times and places, was not the question, nor did it illustrate at all what he said at the particular time and place specified. We think this evidence was not pertinent, calculated to mislead the jury, and that there was error in admitting it, especially as the credibility of this witness was a material question in the case. On the whole, we think there ought to be a new trial.
Judgment reversed.