113 Ga. 862 | Ga. | 1901
The plaintiff sued the defendant railroad companies for damages for the tortious homicide of her husband. The original petition alleged that he was killed while, “in the exercise of due care, [he] was walking over Johns street public crossing, which is a public street crossing in the city of Atlanta; ” that “ the defendants negligently failed to have a watchman at said crossing, said train was negligently running forty miles per hour, and negligently failed to check and keep checking as said crossing was approached, and negligently failed to keep any lookout ahead, nor did they blow any whistle or ring the bell or give any other signal, and 'said defendants further violated a valid ordinance of Atlanta, restraining the speed of trains to four miles per hour over crossings.” During the trial the plaintiff offered to amend her petition by alleging that, “ without reference to whether the deceased was killed on or off the crossing, . . he was visible on the track in the direction from which the train was coming at least 300 yards, and after the danger of the deceased became, or in the exercise of ordinary care should have become, apparent to the defendants’ employees in charge of said train, such employees failed to exercise ordinary care, failed to give warning, failed to check or slow up, and thereby were guilty of gross and wanton negligence.” The defendants objected to the allowance of this amendment, “on the grounds, first, that it set up a new cause of action; second, that it did not definitely set out the location of the deceased at the time of the homicide, whether on the crossing or off the same; and third, if off the crossing, it set forth no cause of action.” The court overruled the objection and allowed the amendment, to which ruling the defendants excepted pendente lite, and error is assigned upon such ruling. Under the rule laid down by this court in Harris v. Central Railroad Co., 78 Ga. 525, the amendment did not introduce a new cause of action. In that case the substance of the original petition, as stated by Chief Justice Bleckley, was, “that the plaintiff’s husband was killed by the running of the defendant’s train, locomotives, cars, and other machinery; his death was the result of no negligence on Ms part, but was due to the negligence of the defendant; it was the result of failure by the defendant to use any of the precautions required of railroad companies at public
The amendment which this court held was properly allowed in the Karris case alleged: “ The defendant failed to furnish a safe way for egress from the cars, in this : It placed an iron rail around the platform of a car and did not provide steps to another car next, to the former, nor proper rails for the protection of persons on the steps. A number of persons were upon the latter car bidding-friends good-bye; they were thete by permission, express or implied, of the defendant, and were negligently urged by the defendant from the car, and whilst they were getting from it the train started, the conductor not allowing sufficient time for those persons to descend, nor did he stop the train or use any care to prevent an accident, though he saw a crowd endeavoring to get off, and saw that the plaintiff’s husband, in climbing off the platform, had fallen between the cars and was hanging to one of the posts of the railing.” Surely if that amendment, which so completely changed “the allegations, in the declaration touching the specific acts of negligence and the manner of causing death,” was permissible, the amendment in the present case, which does not so radically change the original allegations touching these matters, was properly allowed by the trial court. The principle ruled in the case cited is stated in the headnote thereto as follows:' “ The cause of action alleged being the homicide of plaintiff’s husband by means of the defendant’s negligence, the allegations in the declaration touching the specific acts of negligence and the manner of causing death may be varied or added to by amendment during the progress of the trial, so as to adapt the pleadings to the evidence in all its aspects.” This is what the plaintiff sought to do by the amendment in the case now under review. She alleged, and introduced evidence for the purpose of proving, that her husband was negligently killed on Johns street-crossing, in the city of Atlanta, by the running of the defendants’ train. The defendants, while denying that their train killed the plaintiff’s husband, contended that the evidence showed — and they sought to prove — that he was not killed on the street-crossing, but some distance beyond it. To meet this theory and evidence, the