38 Ga. 409 | Ga. | 1868
This case comes before the Court on a double bill of exceptions. The verdict was for the plaintiff. The defendant moves for a new trial, on the ground, first, of error in the Court in admitting and in excluding testimony, but mainly on the ground that the Court erred in his charge to the jury as to
The plaintiff moves for a new trial on several minor grounds, but mainly on the ground that the Court erred in charging the jury, (this being a suit against a railroad company for the homicide of a passenger,) that the plaintiff could not recover if her husband, by the exercise of ordinary care, could have avoided the consequences to himself of the defendant’s negligence.
1. It. is true that there is a' special title in the Code, sections 2978 to 2985, concerning damages by railroads, and that there are several more stringent rules provided against railroad companies, regulating their liability for damages, than are provided against individuals. We do not, however, see any reason why the general principles contained in sections 2917 to 2921, should not apply to physical injuries by railroads. Indeed, it is from section 2920 that the plaintiff in this case gets her right to recover at all. The rule, section 2921, “ If the plaintiff, by ordinary care, could have avoided the injury to himself, caused by the defendant’s negligence, he cannot recover at all,” applies, in our opinion, to all cases, and it is a wise and just rule.
The man who neglects ordinary care to avoid an injury, has no just right to seek redress, if that injury is produced by the negligence of another, and we see nothing in the character of a railroad company which should subject it to damages for an injury caused by the neglect of its agents, where the person injured might, by the exercise of ordinary care, have avoided the consequences to himself. It is objected that this is a harsh rule, and it is even contended, that, though in the Code, it is not law, because beyond, the power of the compilers, who were not authorized to make- law. If. is sufficient for this, to say, that both the Constitutions of 1865 and 1868 adopt the Code, and it is not worth while to discuss the extent of the powers of the compilers. Nor is this rule less hard upon the defendant than was the common law. Mr. Pearce, American Railroad Law, 272, announces it as a general principle of the common law, “That the rule resulting
Our own Courts, previously to the Code, had substantially adopted the same rule, and in 19 Ga. R., 440, this Court, in effect, announces the rule as it exists in this section of the Code.
Our Code, sec. 2970, requires a railroad company to prove, affirmatively, diligence on its part, and declares that the presumption is, in all cases, against the company. It also provides, sec. 2980, that “ if the complainant and the- agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury, in proportion to the amount of default attributable to each of the parties.”
The common law rule was, that however negligent the defendant may have been, yet, if the negligence of the plaintiff contributed to the injury of the plaintiffj he was without remedy. Sedgwick on Damages, 468.
There could be at common law no apportionment of damages. See cases cited, Pierce on Am. R. R. Law, 272-275; Angel on Carriers, 642. A wrong-doer himselfj who has contributed to an injury sustained, can not ask for redress. 8 Man., and Gran & Scott, 114.
2. Our Code, however, in the case of railroads, adopts a different rule, and provides, in certain- eases, for an apportionment of the damages according to the fault of both parties. This, as is said by Judge Benning, in 26 Ga., 250, was the English Admiralty rule, and, taken in connection with the rule in sec. 2921 of the Code, is wise and just. As a matter of course, these rules are to be taken together. Mere want of ordinary care, on the part of the plaintiff, will not relieve the defendant, unless he be totally free from fault. Taken
3. We have not been able to agree with the Court below as to the rule to be adopted for estimating the damages which the wife has suffered by the homicide of the husband. This is a new question not only in Georgia, but wherever the common law is in force. The right to sue at all, depends upon the statute, and the rights of the parties must turn upon its terms. Our first Act gave the right to sue to the administrator, and enacted that, if the estate was insolvent, one-half the recovery should be paid by him to the wife and children. Act 23d February, 1850. The Act of 1856, declared the right to vest in the wife, if any; if not, in the children, and if none, in the legal representatives.
Under these Acts, we are inclined to think it was the intention of the Legislature to give a remedy for the full value of the deceased’s life. But the Code drops the legal representatives altogether, and gives the right only in case of the homicide of a husband or parent, and only to the widow, or, if none, to the children. Code, sec. 2920. This change in the law is significant. Why is no remedy given, except in case of the death of a husband or parent, and why are the representatives dropped ? Simply, as it seems to us, because it was intended only to give to the wife damages for her loss, or, if no wife, then to the children, for their loss. What, then, is the loss of the wife ? Her legal loss ? It is that
We have said nothing as to the children, and are free to
4. An experienced railroad man, who has made the management of cars, engines, etc., his business for years, is as fairly an expert as one skilled in any other art, and his evidence stands upon the same footing. We think, however, that the explanation by Mr. Adams, of the meaning which the railroad companies with which he had been connected attached to the notice that “ passengers must not stand on the platform,” was not proper evidence. The words stand
5. The precise position of Mr. Johnson, at the moment of the collision, is not positively known. He was found on the ground; he had been on the platform very shortly before. The witnesses stated the facts, where they saw him and where he was found. It is sometimes very difficult to draw the line between what is evidence, as a fact, and what is a conclusion of the witness. Much of what we state as fact, is, in truth, only the conclusion of our minds from very conclusive evidence. The statement that a man remained an hour in a room, may safely be made by one who saw him go in and come out, and who, having good opportunities, failed to see him come out in the mean time, and yet after all it may be, and is, a mere conclusion. We think the opinion of the witness is not evidence. If the witness state the presence of the deceased on the platform, at the moment of the collision, as a fact, and it afterwards appear that this is only his conclusion, from his presence there immediately before and his position afterwards, we think his evidence ought not be excluded. His statement of the fact is weakened, it is true, but it is often very difficult to draw the line, when, in such a matter, fact ends and opinion begins. We do not think there is any danger that the jury should be misled. If his statement is only given as opinion, it is inadmissible.
6. The card was, without doubt, inadmissible. All the parties to it were competent witnesses. It might be used, perhaps, to contradict or qualify the evidence of any witness who signed it, if proper foundation was laid, as in case of other statements, but not as original evidence. We know of no rule that justifies its admission. It is not even the state
7. The liability of a common carrier, for injury to a passenger, is somewhat different from his liability for goods. The latter he stores away at his own discretion, the former is a sentient being, and has certain duties of his own to perform. The company may make reasonable rules to regulate the conduct of its passengers, and it is the duty of passengers to comply with those rules. Code, 2043. More especially is this true, when the rule is for the passenger’s own safety. The platform, as is plain to the meanest capacity, is not made to stand upon. The company provides seats, and a shelter for its passengers, and the platform is, as to them, but the passway to their proper place; and it is a reasonable and proper rule, which the company may prescribe, that passengers should not stand upon the platform. It is a rule for the railroad’s own convenience; passengers are in the way, a hindrance to the proper management of the train, in that position. It is also true, that it is a place of danger. Whilst the cars are running it is emphatically so, but even when the cars are not in motion, it is an unsafe place.
8. The evidence of the notice was very strong; sufficient to cast the onus of want of knowledge on the plaintiff. Indeed, at this day, considering the familiarity of all classes-with railroads, and' the evidence which the very nature of the case offers, it would seem that, prima facie, every person ought to know that the platform is not a passenger’s place, except to pass over. Suppose one were to stand on the steps, or mount the railing, or get on the top of the car, would not the presumption be against him ?
We cannot-but think that the jury in this case have not given due consideration to the negligence of the deceased. The evidence is conclusive that he was on the platform, and that his position was, in fact, the occasion of his death. There
9. After the warning, and after he heard the coming train, a passenger went into the car, got his valise, came out, again warned the deceased, got off the train, went to the side of the track, saw the coming train, and again, in a loud voice, gave warning; and yet, deceased, foolishly or recklessly, stood his ground. It is, too, a significant fact, that he had been drinking, and was on the platform, with his hat off. We think both parties were at fault, and, under sec. 2980 of the Code, the damages ought to be diminished by the jury,, in proportion to the fault of each.. We do not think the jury has done this. We would not measure their verdict with accuracy. The jury are the judges of the facts, and it is only when they are so wide of the mark as to indicate passion, mistake, or some error, based upon misunderstanding of law, that a court ought to interfere. We think, in this case, under the evidence, as it is before us in the record, the jury have either mistaken the law, or have acted under the influence of passion, natural, perhaps, in view of the parties, but still, illegal. In view of all the facts, and of the law, as we understand it, we think the verdict is wrong, and the damages, under the evidence, excessive.
Judgment reversed.