Western & Atlantic Railroad v. Burnham, 123 Ga. 28

Western & Atlantic Railroad v. Burnham

123 Ga. 28 | Ga. | 1905

Fish, P. J.

1. Counsel for the plaintiff in error contend that the amendment, properly construed, made no material change in the original petition; but that if - ib can be construed to vary materially from the petition in the allegations as to the manner in which the injury was sustained and the negligence of the defendant,-it set forth a new cause of action, and for this reason should nob have been allowed. There were other grounds of objection, but they were not referred to in the brief of counsel for the plaintiff in error. The original petition, as construed by this court, charged that the plaintiff was forcibly and against her will removed from the car, whereas the amendment avers, not that the plaiutiff was forcibly removed from the car, but that she was assisted to alight under such circumstances and conditions as to result in injury to her person. We think it clear that the amendment differs from the original petition in material particulars as to the details of the transaction which resulted ’ in the plaintiff’s injury. The amendment did not set forth a new cause of action. This subject was so exhaustively, ably, and thoroughly discussed by the Chief Justice, in City of Columbus v. Anglin, 120 Ga. 785, 790 et seq., that it would be a work of supererogation to attempt to throw any additional light on the abstract question there discussed. The key to the whole matter lies in the proposition there announced (p. 791), that “so long as "a plaintiff pleads but one wrong, he does not set up more than one cause of action.” See also Insurance Co. v. Leader, 121 Ga. 260 (2), 268; So. Ry. Co. v. Horine, 121 Ga. 386 (1); Con. of Ga. Ry. Co. v. Henson, 121 Ga. 462. Tested by the rules laid down in these cases, we have no *31difficulty in reaching the conclusion that the amendment did not set forth a new cause of action. The cause of action was the same as that declared on in the original petition", to wit, the wrong done the plaintiff by negligently injuring her in the manner in which she alighted from the train. • Of, to state it. differently, the plaintiff had a right to disembark- safely from the train. The wrong consisted in violating this right. The manner in which it was violated was a minor fact and might be changed by amendment. New charges of negligence ^could be thus added if they contributed to or related to the same wrong. So. Ry. Co. v. Horine, supra. The amendment sought merely to change the description of the details or minor facts of the transaction. It did not change the main fact. The wrong in each case was the same. ’A plaintiff may in different counts of a petition set forth the same cause of action in as many different ways as he sees proper. Gainesville Ry. Co. v. Austin, 122 Ga. 823. Whether he can do so in the same count is, however, a question of some difficulty, and oue which need not be decided in the present case. Nor need we decide whether the amendment in the present case should be treated as adding a new count to the petition, or as making contradictory averments of fact in the same count, none of the allegations of the original petition having been stricken. The objection to the amendment raised nd such question, but alleged merely that the amendment set forth a new and distinct cause of action. This objection was not well taken.

2. In one ground of the motion for a new trial error is assigned upon the admission of testimony that the plaintiff “ complained” the night after the injury, and just as she got off the train said “that was .quite a jolt, or something to that effect.” In A., K. & N. Ry. Co. v. Gardner, 122 Ga. 82, it was held to be error, in the trial of an action for personal injuries, to admit testimony that the plaintiff complained to her' physician “of backache and pains in her hips.” In the present case, however, it does not appear that the plaintiff complained of any particular-pain or injury, but that she simply complained and stated that she had received quite a jolt. We are unable to see how this testimony could have prejudiced the defendant in any way or have resulted in any harm to its case. The admission of the testimony was not cause for a new trial.

*323. Complaint is also made that the court charged in the same connection the principles of law laid down in the Civil Code, §§ 2322, 3830; and it is contended that, under the ruling in Americas Ry. v. Luckie, 87 Ga. 6, which was followed in Macon Ry. Co. v. Moore, 99 Ga. 229, and in Savannah Ry. Co. v. Hatcher, 118 Ga. 273, a new trial should have been granted. In the charge complained of, the judge instructed the jury that, the plaintiff being a passenger, the defendant was bound to exercise extraordinary care. He then defined this degree of diligence, and stated that if the defendant failed to exercise it the plaintiff could recover, if she could not, by the exercise of ordinary care, have prevented the injury. The judge then charged the law relating to' contributory negligence, prefixing the instruction and separating it from the other charges by the word “again.” The law was correctly given on all the subjects dealt with, and we do not think the different principles were so confused and connected with each other as to be misleading. The case differs from those cited and relied on by the plaintiff in error.

4. Complaint is also made of the charge on the subject of the measure of damages, wherein the court instructed the jury that the plaintiff could recover for the “actual injury sustained by her.” It is claimed that the language quoted is too broad. When this language is read in connection with the other portion of the charge, it is perfectly plain that the court intended to restrict the plaintiff to a recovery of damages for pain and suffering arising from the injuries alleged in the petition and supported by testimony. The jury were distinctly instructed that, as the plaintiff was a married woman, no recovery could be had for lost time, diminished capacity to labor, or expenses mf medical attention. The only measure of damages for pain and suffering is the enlightened conscience of an impartial jury; and this the court charged.

5. The court charged that it was the duty of the defendant to stop its train long enough for the plaintiff to alight, and to furnish her a reasonably safe place to get off. It is contended that this is an expression of opinion as to what would constitute negligence, and that there was no allegation in the petition that the defendant bad not furnished a safe place for the plaintiff to alight from the train. We do not think the charge contained any expression of opinion which would violate the rule laid down in the code, that *33a judge must not express or intimate any opinion as to what has or has not been proved. The judge was merely stating to the jury the rule of law applicable to one of the issues in the case. It is certainly good law that a carrier of passengers must stop its train at stations a reasonable time for passengers to alight. The expression “ stop long enough ” for the plaintiff to alight was not strictly accurate, but no criticism was made on this language. The judge was not dealing with a question of negligence, but was strictly within his province in charging the jury the rules of law by which they were to be governed. It was, however, inaccurate to refer, in the charge, to a safe place at which to alight. There was no allegation in the petition rendering such an instruction pertinent, and it should not have been given. But we do not think this inaccuracy would require the granting of a new trial. This is the second verdict in the case, and one reasonable in amount. The case was fairly tried, and this slight inaccuracy ought not to work a new trial.

6. There was evidence which supported the allegations in the amendment to the petition, and the verdict was therefore not without evidence to support it.

Judgment affirmed.

All the Justices concur, except Gaudier J., absent.