122 Ga. 559 | Ga. | 1905
(After stating the foregoing facts.) Evidence that the plaintiff’s husband had been killed by the running of defendant’s cars raised the statutory presumption of negligence. This was sufficient to prevent the nonsuit, unless the other testimony for the plaintiff disproved the prima facie case thus made. Exclamatory remarks are a part of the res gestae, and entitled to be considered as evidence by the jury But testimony by another witness for the plaintiff, as to explanatory statements made by the engineer as to the circumstances of the killing, and why he did not see the deceased' in time to stop before running over him, was mere hearsay, and of no probative value even after it had been received without objection. Hearsay evidence could not disprove what had been otherwise established. Suttles v. Sewell, 107 Ga. 216; Civil Code, §§ 5179, 3034
As the nonsuit should not have been granted, it becomes necessary to consider the cross-bill assigning error upon the refusal of the court to sustain the demurrer. The allegations in the petition were of the most general nature, and, beyond the fact of homicide, gave the defendant little or no indication of what was expected to be proved. The petition did not show whether the deceased was an employee, licensee, or trespasser Each of these relations raised a particular duty. What might have been negligence’ as to one would not necessarily have been so as to the other. The petition did not show whether the homicide was at a crossing, at a point distant- therefrom, or at a place where the defendant was bound to be on the lookout for pedestrians. It did not allege whether the plaintiff - was walking, standing, or lying on the track; and if the
It is always easier to allege than prove. If the facts can not be alleged, they can not be proved. If the facts do not warrant the plaintiff in stating that which would be good as against a demurrer, he can not cure the fatal defect by evidence before the jury. If the facts ás alleged set forth a case the law of which is doubtful, it is far better for the parties, for witnesses, and for the country that they should be passed upon as a matter of law than to prove the same facts and have the same result reached by a motion to dismiss,-- direction of verdict, or nonsuit. R. & D. R. Co. v. Mitchell, 95 Ga. 85 ; Warren v. Powell, 122 Ga. 4. If the demurrer is sustained, the plaintiff does not lose, as was so often the case at common law, because of the violation of a technical rule of pleading. The law guarantees him against that. It is not for the want of skill or the fault of his counsel that he loses. It is his misfortune that on-the admitted facts the law declares he is not entitled to recover. In view of the liberality in holding defective petitions good as against a motion to dismiss, and the almost unlimited right to amend, but with a recognition at tlie same time of the defendant’s right to a full statement, there has been a marked tendency in our decisions to magnify the office and the importance of the special demurrer. And when the defendant calls therefor, he is entitled to a full statement of time, place, circumstance, and facts the plaintiff expects to prove, so that he may prepare his defense accordingly — whether that defense be by demurrer or by plea raising an issue to be passed on by the jury. He is entitled to a statement of issuable and traversable facts; not to general allegations of negligence or liability, which, at last, are more in the nature of conclusions than allegations of fact. The petition here, though good as against a general demurrer, whs defective. The omissions were duly pointed out by special demurrer, which should have been sustained. Russell v. Central Ry. Co., 119 Ga. 705; Murphy v. Lawrence, 2 Ga. 258; Ellison v. Georgia R. Co., 87 Ga. 702; Fontaine v. Baxley, 90 Ga. 428; James v. Ry. Co., 90 Ga. 697; R. & D. R. Co. v. Mitchell, 95 Ga. 85 ; Blackstone v. R. Co. 105 Ga.
Judgment on cross-bill of exceptions reversed; main bill of exceptions dismissed.