3 Ga. App. 1 | Ga. Ct. App. | 1907
Mary Smith sued the Seaboard Air-Line Railway for the homicide of her unmarried and childless son, Hamp Smith, who supported, her. In her original petition she alleged, that the deceased was a passenger on a train of the defendant company-
1. The point is made that the rulings of the trial judge upon
2. The court should have sustained the special demurrer to the ninth paragraph of the petition as amended, on the ground that the distance from the place where the deceased was put off the train to the place where he was killed is not shown. While, of course, rulings on demurrers are to be considered entirely apart from the evidence adduced upon the trial, still the fact that this special demurrer was not captious or ill-founded is made manifest by the result which was afterwards reached on the trial. If to meet this demurrer the plaintiff had amended by alleging the truth, as it finally appeared, that the distance from Collins where the deceased was put off the train to the point where he was run over by the second train and killed was between three and four miles, the second count should have been stricken on the ground that no cause of action was therein set out. We will now merely announce this general conclusion that the statement of this distance would have negatived liability on the part of the defendant, and will discuss the reasons further on in the opinion.
There was some slight evidence, perhaps enough, to prevent this ■court’s interference with the verdict on the ground that it is contrary to the evidence, and j^et hardly enough for us to believe that any intelligent jury would have found, or the honest trial judge would have approved, a. verdict thereon tending to sustain the theory of the first count, — that the agents of the railway company deliberately hurled the deceased from the train as it was going at full speed, thereby causing his death. Also, there was evidence which, if the distance which the deceased walked down the track after he was put off be considered as immaterial, would have
’ 3. However, we deem it apposite to the ruling made that we should discuss at some further length the ■ law on which it is based. The negligence of the defendant, according to the second count 'of the petition, consisted “in expelling said Hamp Smith from said train at night and in the dark, and leaving him
Let the judgment le reversed.