21 S.E. 67 (Ga. 1894), Roach v. Western & A.R. Co.

• Citation: 21 S.E. 67, 93 Ga. 785
• Opinion Judge: LUMPKIN, J.
• Party Name: ROACH v. WESTERN & A. R. CO.
• Attorney: Smith, Glenn & Smith, for plaintiff in error. Payne & Tye, for defendant in error.
• Case Date: July 16, 1894
• Court: Supreme Court of Georgia

Page 67

21 S.E. 67 (Ga. 1894)

93 Ga. 785

ROACH

v.

WESTERN & A. R. CO.

Supreme Court of Georgia

July 16, 1894

Syllabus by the Court.

1. Declarations made 20 minutes after a collision between a locomotive and a buggy, by one who was in the buggy, and who was injured by the collision, and who had been removed a considerable distance from the scene of the collision to a house in which he was being cared for, are not admissible as a part of the res gestae of the collision, the declarations being in the nature of a narrative of what had occurred, including statements as to the cause of the collision, and not spontaneous exclamations made on the spot, or very near thereto, and not in point of time so immediately after the occurrence as to be properly regarded as a part of the occurrence itself.

2. Except as to the subject embraced in the foregoing note, there was no substantial error in admitting or rejecting evidence.

3. The rule of law which would exempt the company from liability had the company been wholly free from negligence which contributed to the injury was not applicable to the facts of the case, and the charge of the court on that theory was hypothetical, and therefore erroneous.

4. The negligence of the driver and owner of a private vehicle, who, by such negligence, contributes to causing a collision with a locomotive, is not imputable to another person riding by invitation in the vehicle, unless that person had some right or was under some duty to control or influence the driver's conduct. Such right might arise by reason of the two being engaged at the time in a joint enterprise for their common benefit; and, if this were not so, the duty might arise from known or obvious incompetency of the driver, resulting from drunkenness or other cause.

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by J. A. Roach against the Western & Atlantic Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Smith, Glenn & Smith, for plaintiff in error.

Payne & Tye, for defendant in error.

LUMPKIN, J.

Roach, Lindsey, and Saxon were riding in a buggy which belonged to Lindsey, and which was being driven by Saxon. While crossing the main track of the Western & Atlantic Railroad Company, at a street crossing in Cartersville, the locomotive of a train ran into the buggy, killing Lindsey...