Ala. Midland Ry. Co v. Guilford

• Decision Date: 05 February 1902
• Citation: 114 Ga. 627,40 S.E. 794
• Parties: ALABAMA MIDLAND RY. CO. v. GUILFORD.
• Court: Georgia Supreme Court

40 S.E. 794

114 Ga. 627

ALABAMA MIDLAND RY. CO.

v.GUILFORD.

Supreme Court of Georgia.

Feb. 5, 1902.

PLEADING — ANSWER — AMENDMENT — WITHDRAWAL OP ADMISSIONS—EVIDENCE—CARRIERS—INJURY TO PASSENGER —INSTRUCTIONS.

1. Where certain allegations in a petition are expressly admitted in the defendant's answer, and the defendant is allowed during the trial of the case to file an amendment, to which is attached the affidavit prescribed by the act of 1897 (Van Epps' Code Supp. § 6199), denying such allegations, it is error to refuse to allow the withdrawal from the pleadings of the defendant's admissions, and to charge that the defendant is conclusively bound by such

admissions, and estopped to deny them. After the admissions have been withdrawn from the pleadings, they can still be offered in evidence against the defendant, though the latter will have the right to explain and disprove them.

2. In a suit against a railway company for personal injuries brought about by the collision of one of the defendant's trains with a tree which had fallen across the track, where the defendant had introduced evidence tending to show that the tree had stood at a point outside of its right of way, that there had been a severe wind but a few minutes before the collision, that shortly prior thereto the track had been clear, and that the defendant's agents had used all diligeuce, but had not had time or opportunity to inspect the track before the arrival of the train, it was error to refuse a request, properly made, to charge that, if the jury believed that these things were true, then no liability would attach to the defendant company for having failed to ascertain that the tree had been blown down, or for not having given the company's servants in charge of the traiu warning that the tree had fallen across the track.

3. Where error is assigned on the refusal to give in charge a pertinent and legal request made in due time, this court will not presume, merely because no copy of the general charge is sent up in the record, that the request was covered by the charge given.

4. In a case of this character, in which the plaintiff alleged several different acts of negligence on the part of the defendant, it was error to charge that, if the jury found that the defendant was negligent in any of the particulars alleged by the plaintiff, the defendant would be liable, provided the jury found that the plaintiff sustained injury. Under this charge the jury could have found for the plaintiff, although they were of opinion that the negligence of which they believed the defendant guilty had not materially contributed to the injury of the plaintiff. In this respect, at least, the charge was erroneous.

(Syllabus by the Court.)

Error from superior court, Decatur county; W. N. Spence, Judge.

Action by J. S. Guilford against the Alabama Midland Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.

Hawes & Hawes, for plaintiff In error.

Toomer & Reynolds and W. M. Harrell, for defendant in error.

SIMMONS, C. J. It appears from the record that Guilford was an express messenger running on the line of the Alabama Midland Railway Company. He was injured by reason of the collision of the engine with a tree which had been blown by the wind across the railroad track. This injury occurred in the state of Alabama. Guilford brought suit in Decatur county, Ga., against the railway company, to recover damages for the injuries. He alleged that the Alabama corporation had been merged, under the laws of the two states, with a railway corporation of the same name in this state, and that the Alabama company was operating a line of railroad in this state, and had an office and agent in the county in which the suit was brought In its answer filed at the first term the railway company admittedthese allegations as time. At the trial term it offered an amendment, which, in substance, denied these allegations. This amendment was sworn to by an agent of the company, and to it was attached the affidavit prescribed by the act of 1897 (Van Epps' Code Supp. § 6199). This amendment was allowed. The defendant then asked leave to withdraw the admissions made in its original answer. This the court refused to allow, which ruling was assigned as error in the motion for new trial subsequently filed. Error was also assigned on a charge of the court to the effect that the defendant was bound by the admissions, and estopped to deny them.

1. We think the court erred in refusing to allow the defendant to withdraw the admissions made in its original answer. When the affidavit prescribed by the above-cited act is attached to a proffered amendment, the judge has no discretion, but must allow the amendment In Wynn v. Wynn, 109 Ga. 255, 34 S. E. 341, it was ruled that "under the act of 1897 (Acts 1897, p. 35) a defendant may, as a matter of right, amend his answer, if he attach the affidavit therein prescribed." In that case it appeared that the defendant had admitted what he intended to deny, and denied what he intended to admit He offered an amendment, with the proper affidavit attached, and this court held that the trial court erred in refusing to allow the amendment. It was argued here in the present case that the defendant was not hurt by the refusal to allow the admissions to be withdrawn, because the court did allow the amendment above set out, and the admissions were afterwards put in evidence by the plaintiff as admissions by the defendant We think the defendant...