128 Ga. 383 | Ga. | 1907
The plaintiff, while riding in a bnggy with her husband, who was driving, was injured by a collision with.a locomotive drawing a passenger-train on the defendant’s road, at a public, crossing. There was evidence showing that the defendant’s employees had neglected to observe the blow-post law, and that the train passed over the crossing at a high and negligent rate of speed. There was some evidence tending to show that a traveler along the public highway, on account of obstructions along and near the track of the railway, could not see an approaching train until at or very near the railroad track. But it is not necessary to set out this evidence, or to argue the question as to whether or not, under the evidence, the husband was guilty of such negligence in driving upon the track as would preclude a recovery for injuries resulting to him from the collision. The collision was fatal to him, but this suit was not instituted to recover damages for the homicide of the husband, but was brought to recover damages for injuries which the plaintiff received as a result of the collision, which she alleges was a result of the negligence of the defendant and its employees, and in no way the result of any negligence on her part. According to the testimony of the plaintiff herself, the husband was the driver of the vehicle in which she was riding at the time she received the injuries, and she was in the buggy as his companion, but exercising no control whatever over him. She thus states the situation in her own words: “When the buggy was struck by the train, my husband was in charge of the buggy and driving. I had nothing to do with it. I was not driving the buggy, had nothing to do with driving the buggy. I did not tell him how to drive it or where to drive it, or where to stop, had nothing to do with it. I was just going with him to church, and coming back with him from church. He was in. charge of the mule and buggy.”
Under this evidence the question as to whether or not, if the husband was guilty of negligence in driving upon the railroad track, that negligence was. imputable to her, necessarily arose. Upon the question of imputable negligence the court charged the jury as follows : “I charge you that if Mrs. King [the plaintiff] was in control of that vehicle in driving it, and having driven it across the railroad, I charge you that if then Mr. King, her husband, was
No other rulings or portions of the charge were excepted to in any grounds of the motion now insisted upon, it being admitted that the questions raised by the other exceptions to the charge were disposed of adversely to the plaintiff in error by the decision in' the case of Combs v. Southern Ry. Co., 124 Ga. 1004. The negligence of the husband, if he was negligent, under the facts in this case, not being imputable to the wife, the evidence was sufficient to sustain the finding in her favor, and the judgment of the court below refusing a new trial is Affirmed.