121 Ga. 391 | Ga. | 1904
The plaintiff below, Mrs. Elizabeth Evans, brought a suit for damages, in the city court of Savannah, against the Savannah, Florida & Western Railway Company, a Georgia corporation, which she alleged was, in the month of October, 1899, operating a railroad running into and through the Town of Lakeland, in Polk county, Florida. Her complaint was that the defendant company on October 5, 1.899, while operating an engine along its track through that town, ran over and killed her husband as he was at night attempting to cross its track at a point where, by long established license, the public in general and the citizens
The court committed further error in allowing the plaintiff to introduce in evidence a copy of section 125 of the “Revised Ordinances of Lakeland, Florida,” providing that “ No locomotive, car, or train of cars shall be run at a greater speed within the corporate limits than eight miles per hour.” Judicial notice could not be taken of even a valid ordinance of a municipality of this •State. Mayson v. Atlanta, 77 Ga. 663 (5). The ordinance Was not pleaded by the plaintiff, nor was the company charged With a violation thereof or of any other ordinance of the town. The admission of this evidence was, moreover, harmful, as the court followed up the error of admitting it with a charge to the jury which gave to the plaintiff the benefit of the same.
One request to charge on this subject ought to have been given, as counsel for the defense embraced therein only such contentions on the part of the plaintiff as she was bound to establish as a condition precedent to a recovery under the allegations of her petition. Reference is had to the request copied in the 11th ground of the company’s motion for a new trial, which request, was to the effect that it was incumbent on the plaintiff to show that where her husband was killed was a place where the company had, by long and established license, permitted the public in general and the deceased and other citizens of the town to cross, and that he had a right to be at that point at the time and under the circumstances alleged. It may be added, in this connection, that the court ought to have confined the plaintiff to.proof relevant to her case as laid, and have sustained the defendant’s objections to all evidence offered with a view to showing that the deceased met his death at a regular street-crossing, where the
Judgment reversed.