Roach v. Western & A. R. Co

Decision Date16 July 1894
Citation21 S.E. 67,93 Ga. 785
PartiesROACH . v. WESTERN & A. R. CO.
CourtGeorgia Supreme Court

Evidence—Res Gestae—Hypothetical, Instructions—Imputed Negligence.

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.

(Syllabus by the Court)

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, and injuring Roach and Saxon. Roach brought an action against the company for damages, which resulted in a verdict for the defendant. His motion for a new trial, which was overruled by the court, contains a large number of grounds, many of which are too trivial to require notice. The controlling questions in the case are indicated by the headnotes.

1. It appears that after the collision, Saxon was removed from the scene of the injury, a distance varying, according to the evidence, from 150 to 200 yards, to the house of one Ann Strickland, in which he was being cared for. The court admitted in evidence, in favor of the defendant, declarations made by Saxon some 20 minutes after the collision had occurred, to the effect that the parties in the buggy were all drunk, and that liquor was the cause of all the trouble which had occurred. These declarations were in the nature of a narrative of what had occurred, and were not spontaneous exclamations made on the spot where the collision took place, or very near thereto. We are quite clear the court erred in admitting these declarations. They were not, in point either of time or distance, so closely connected with the occurrence to which they related as to be properly regarded as a part of the res gestae. Enough...

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18 cases
  • Cotton v. Willmar & Sioux Falls Railway Company
    • United States
    • Supreme Court of Minnesota (US)
    • November 23, 1906
    ...... be negligent if he relied on a driver who was known to be. intoxicated or otherwise incompetent. Roach v. Western, 93 Ga. 785, 21 S.E. 67; Meenagh v. Buckmaster, 26 A.D. 451, 50 N.Y.S. 85. Many other cases. might be cited to illustrate the rule that ......
  • Cotton v. Willmar & Sioux Falls Ry. Co.
    • United States
    • Supreme Court of Minnesota (US)
    • November 23, 1906
    ...A passenger certainly would be negligent if he relied on a driver who was known to be intoxicated or otherwise incompetent. Roach v. Western, 93 Ga. 785, 21 S. E. 67; Meenagh v. Buckmaster, 26 App. Div. 451, 50 N. Y. Supp. 85. Many other cases might be cited to illustrate the rule that a gu......
  • Cotton v. Willmar & S. F. Ry. Co.
    • United States
    • Supreme Court of Minnesota (US)
    • November 23, 1906
    ...passenger certainly would be negligent if he relied on a driver who was known to be intoxicated or otherwise incompetent. Roach v. Railway Co., 93 Ga. 785, 21 S. E. 67;Meenagh v. Buckmaster, 26 App. Div. (N. Y.) 451, 50 N. Y. Supp. 85. Many other cases might be cited to illustrate the rule ......
  • Beadles v. Bowen, 39473
    • United States
    • United States Court of Appeals (Georgia)
    • April 25, 1962
    ...imputable to the guest, unless the guest had some right, or was under some duty, to control the driver's conduct. Roach v. Western & A. R. Co., 93 Ga. 785(4), 21 S.E. 67. 5. Ground 10 urges error on a number of grounds in charging Code Ann. § 68-1670(a)7 (Ga.L.1953, Nov.Sess., p. 598) which......
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