Atlanta Consol. St. Ry. Co. v. Hardage

• Decision Date: 24 October 1893
• Parties: ATLANTA CONSOL. ST. RY. CO. v. HARDAGE.
• Court: Georgia Supreme Court

21 S.E. 100

93 Ga. 457

ATLANTA CONSOL. ST. RY. CO. v. HARDAGE.

Supreme Court of Georgia

October 24, 1893

Syllabus by the Court.

1. It appearing that the conductor of defendant's car was informed that the plaintiff and her child were sick when they boarded the car, there was no error in allowing the plaintiff to testify that she took the car because of the sickness of herself and child, or that her husband desired her to take the car for this reason.

2. There was no error in allowing the plaintiff to testify that at the place where she was ejected from the car there was no protection for ladies or strangers, with reference to the police, although the absence of such protection was not alleged in the declaration.

3. In an action by a married woman against a common carrier for wrongful expulsion from a car, section 3066 of the Code may apply, both in letter and spirit; but the terms of section 3067 are not literally applicable, though the principle of the section, except as to considering the worldly circumstances of the parties, is applicable in so far as injury to the feelings is concerned.

4. In view of the evidence in the record, it was error for the presiding judge to make no allusion whatever to any issue between the plaintiff and the defendant, and none whatever to any defense which might be embraced in the evidence.

5. A request to charge that "the jury must find a verdict on the acts of negligence alleged in the declaration" is susceptible of being misunderstood. Had the request been to charge that there could be no verdict for the plaintiff based on any negligence not alleged in the declaration, it should have been given.

Error from city court of Atlanta; T. P. Westmoreland, Judge.

Action by Lillie J. Hardage against the Atlanta Consolidated Street-Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

N. J. & T. A. Hammond, for plaintiff in error.

Hutcheson & Key, for defendant in error.

BLECKLEY C.J.

1, 2. We fail to see that there was any error in admitting evidence. The conductor was informed that the plaintiff and her child were sick when they boarded the car. Surely, it was competent for her to testify that she took the car because of the sickness of herself and child, or that for this reason her husband desired her to take the car. If it was a fact that she and her child were sick, and the conductor knew it why should this not go before the jury? If they were sick people, they were entitled to be treated as such, the conductor knowing of their condition. It is true that whether the sickness constituted the motive for going by the cars or not was of little consequence, but it was not wholly irrelevant, inasmuch as it served to account for the plaintiff's presence on the car, and her relation to the company as a passenger. The declaration did not allege that at the place where the plaintiff was ejected there was no police protection for ladies or strangers, but it was competent to prove this fact, not to show any negligence or misconduct on the part of the defendant, but to show the actual condition in which the plaintiff was placed by the acts of negligence or misconduct which were alleged. The absence of police protection, though not imputable in any respect to any omission of duty on the part of the defendant would throw some light on the mental distress and suffering which the plaintiff probably underwent when she was ejected and immediately thereafter during the time she was obliged to remain alone in a sparsely-populated and unprotected neighborhood. It surely cannot be necessary to allege all the surroundings which may serve to aggravate an injury, in order to have them admitted in evidence at the trial.

3. The court charged the jury as follows: "In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff. In such cases, no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed by the jury. In every tort there may be aggravating circumstances, either in the act or the intention; and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass, or as compensation for the...