Atlanta & C. Air-line Ry. Co v. Gravitt

• Decision Date: 26 February 1894
• Citation: 93 Ga. 369,20 S.E. 550
• Parties: ATLANTA & C. AIR-LINE RY. CO. v. GRAVITT.
• Court: Georgia Supreme Court

20 S.E. 550

93 Ga. 369

ATLANTA & C. AIR-LINE RY. CO.

v.GRAVITT.

Supreme Court of Georgia.

Feb. 26, 1894.

Evidence at Former Trial—Inaccessible Witness—Question for Trial Court—Dependent Mother—Custodian of Child — Negligence— When Imputed to Parents — Railroad Companies—Injury to Persons on Track — Failure to Give Crossing Signals—Evidence.

1. There was no error in admitting the evidence of a witness introduced upon a former trial of the same case, when it appeared that the witness, since testifying, had removed to the state of Texas. Whether or not a witness beyond the jurisdiction of this state is "inaccessible, " in the sense in which that word is used in section 3782 of the Code, is, under all the circumstances of the particular case, a question for determination by the trial court, in the exercise of a sound discretion.

2. Where a boy 11 years old, whose labor was worth six dollars per month, and who resided with his parents, worked with his father on a farm, and rendered services to his mother about the house, in the performance of her household duties, —the benefit of his labor and services being thus realized by the parents in the support of themselves and their family, they being laboring people, and mutually dependent upon the labor of one another for a support, —the mother was dependent upon the boy, and he contributed substantially to her support.

3. Where a father intrusts his minor son, a youth of tender years, to the care and custody of another, such person becomes the legal representative and agent of the father in discharging the duty which the law imposes upon the latter of guarding and shielding the child from injury. Accordingly, if the child, by reason of the gross negligence of his custodian, in taking him upon a high and dangerous trestle, is run over by a passenger train and killed, such negligent conduct is, in law, imputable to the father himself. Such custodian could not, however, properly be regarded as likewise the representative or agent of the child's mother. By express statute, in this state, the father is vested with the control of his minor child, and the mother is not accountable for the conduct of a custodian for him chosen by the father. Nor, in a suit by the mother in her own right, as authorized by special statute, is she chargeable with the negligence of the father merely because of the conjugal relation existing between them.

4. Relatively to a person who, without license from the company, is walking upon a railway track on a trestle, though such trestle be situated between a blow post and a public crossing, the omission of the engineer to comply with the statutory requirements as to giving signals and checking the speed of the train is not negligence, inasmuch as these requirements raise no duty as between the company and strangers who may be upon the track elsewhere than at a public crossing.

5. The duty to observe all ordinary and reasonable care and diligence towards such person arises when his presence becomes known to the engineer, and not before. A failure in such care and diligence after that time, from which injury results, unless it could have been avoided by the use of ordinary care on the part of the person, hurt or killed, will render the company liable.

6. Although omission of the statutory requirements, when a part of the res gestae, may be considered by the jury in passing upon the question of negligence relatively to the person injured or killed, yet, where the evidence, as a whole, shows there was no negligence imputable to the company or its servants, except failure to observe these requirements, the company is not liable for results occurring upon the track of its road elsewhere than at a public crossing.

7. The mere opinion of a locomotive engineer that a heavy passenger train, consisting of a locomotive and six cars, running down grade at 45 miles an hour, could be stopped within a distance of 100 yards, is not sufficient to overcome the positive and uncontradicted evidence of the engineer and fireman upon the identical train that all was done which could possibly be done to stop it, and that nevertheless it was not stopped within a distance of over 400 yards, especially when the evidence of these witnesses was strongly corroborated by others, who were experts in such matters.

(Syllabus by the Court.)

Error from superior court, Hall county; C. J. Wellborn, Judge.

Action by Elizabeth M. E. Gravitt against the Atlanta & Charlotte Air-Line Railway Company to recover for the death of plaintiff's minor son, caused by defendant's negligence. There was a judgment for plaintiff, and defendant brings error. Reversed.

Jackson & Jackson, Geo. Dudley Thomas, and S. C. Dunlap, for plaintiff in error.

J. B. Estes, H. H. Perry, H. H. Dean, and M. L. Smith, for defendant in error.

LUMPKIN, J. The facts of this case, so far as material, will be stated in connection with the legal principles discussed.

1. One ground of the motion for a new trial alleged that the court erred in allowing the plaintiff to introduce, over objection of the defendant, the evidence of one Willing-ham, contained in a brief of the evidence taken at a former trial of this same case; it appearing that the witness, who had formerly resided in the county where the trial occurred, had removed to Texas, and that his place of abode in that state was well known to the officers of court, and also in the community in which he had resided before leaving Georgia. "That a witness is beyond the jurisdiction of the state is generally a sufficient cause for not producing him." See Welch v. Manufacturing Co., 61 Ga. 448, citing 1 Greenl. Ev. § 163, and note on page 235, and also previous decisions of this court And see the later case of Gunn v. Wades, 65 Ga. 537. After an examination of the authorities, and after some reflection, our conclusion is that whether or not a witness beyond the jurisdiction of this state is "inaccessible, " in the sense in which that word is used in section 3782 of the Code, is, in each particular case, a question for determination by the trial judge, in the exercise of a sound discretion. We are unadvised as to whether or not there is any statute in Texas for compelling the attendance before commissioners of a witness whose testimony by interrogatories is desired in the courts of another state. In the absence of a law of this kind, there could be little doubt as to the inaccessibility of the witness Willingham; and, even if we knew of the existence of such a law in Texas, we are not prepared to say we would hold that the trial judge erred in deciding that the witness was inaccessible.

2. The boy killed by the defendant railway company was 11 years of age. The second headnote states substantially the nature and character of the services he rendered at his parents' home. There was evidence that his labor was worth six dollars per month in money. In order to authorize a recovery by the mother for the homicide of this child, it was essential for her to make it appear that he contributed to her support. Clay v. Railroad Co., 84 Ga. 345, 10 S. E. 967. If he did contribute to her support, and she was substantially dependent upon the child in part, for support, the fact that she was also dependent upon her husband and her own labor would not defeat her right to recover. Daniels v. Railway Co., 86 Ga. 232, 236, 12 S. E. 365. In the present case, we think the mother was dependent upon the boy, and that he contributed substantially to her support This conclusion is sustained by the decision of this court, made after full and careful deliberation upon the question now under consideration, in Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406. See headnote 6, and the comments thereon by Chief Justice Bleckley. The only practical difference between that case and the one at bar is that there the son was between 15 and 16 years of age, while in the present case the boy killed was between 11 and 12. The principle applicable is the same in both cases.

3. The doctrine of imputable negligence is, to some extent, involved in the present case. Judicial opinion has not, in the past, been harmonious as to the extent or the application of this doctrine. The various questions which have arisen when it has been invoked have led to many perplexing doubts, and much conflict and confusion in the earlier decisions. We have therefore thought it not unprofitable to enter into a somewhat extended consideration of the doctrine, so far as it has any bearing on the facts now before us; for, though this discussion may not be absolutely essential to a correct and intelligible disposition of the present case, we are willing to undergo the considerable amount of labor required, in the hope that it may prove useful to this court, as well as to the judges of the trial courts, In determining questions which are likely to arise in the future in similar cases.

The plaintiff seeks to recover for the homicide of a minor son, 11 years of age. As any negligence of the child himself, or any negligence legally imputable to him, which would have defeated a recovery by him, had he been injured instead of being Killed, and had brought an action for the injuries, would now defeat a recovery by the mother, it is Important at the outset to determine how the child's rights in such an action would be affected by his own negligence, or that of another. Under the facts of this case, it is hardly necessary to go into the question of the child's own negligence, but the inquiry does arise whether or not the undoubted negligence of the person in whose charge he was when killed could or could not have been properly urged as a defense to an action brought in his behalf. As considerable conflict is presented by the numerous cases in which this inquiry has heretofore arisen, we shall attempt to review the leading decisions on the subject, with a view to ascertaining what the true law is.

The rule Imputing to a child of tender years the negligence of...