Atlanta Ry. & Power Co. v. Monk
| Decision Date | 12 August 1903 |
| Citation | 45 S.E. 494,118 Ga. 449 |
| Parties | ATLANTA RY. & POWER CO. v. MONK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where, to an action of damages on account of personal injuries, an amendment was allowed, which alleged acts of negligence of an entirely different nature from those set up in the original petition, but in charging the jury the court gave instructions which expressly eliminated from consideration any acts of negligence charged in the amendment, and, in the light of the charge as a whole, the effect of the evidence introduced under the amendment must have been more advantageous than injurious to the defendant the allowance of the amendment over the objection that it set up a new cause of action, whether originally erroneous or not, will not work a reversal of the judgment of the court below.
2. The Carlisle Mortality and Annuity Tables are standard tables and will be admitted in evidence without proof of their correctness, or that they are what they purport to be.
3. On the trial of an action against a street railroad company for damages on account of personal injuries received by the plaintiff while walking across a trestle, evidence that a person other than the plaintiff had been warned to keep the plaintiff and others off the trestle was, in the absence of anything to show that such warning was communicated to the plaintiff, or was given in her presence, inadmissible to bind her with notice that the general public was not allowed on the trestle, and, being irrelevant to any issue in the case it was not admissible as foundation for an impeachment of the witness.
4. In such a case it is competent to show, by a witness proved to have been familiar with the operation of electric cars, the usual means of stopping such a car under given circumstances, regardless of the means of loading the car, the grade upon which it is running, or the speed at which it is run.
5. It is also competent in such a case to prove by expert testimony within what distance a single car can be stopped on a given grade, though it appear that the train which caused the plaintiff's injuries was made up of three cars, and that the grade at the place where the injuries were received was not so steep as the one in the hypothetical question submitted to the witness.
6. It is also admissible in such a case to show the general effect of curves upon the speed of a car, and this may be done by a witness who is an expert in the running of steam, but not of electric, railroads.
7. Where the charge of the court as given fully covers the points made in written requests to charge, it is not error to refuse to charge in the exact language requested.
8. The evidence warranted a finding that the employés of the defendant did not exercise ordinary care to avoid injuring the plaintiff after her presence and peril were discovered by them; and accordingly it was not error to refuse a new trial on the grounds that the verdict was contrary to law and the evidence.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by Anna Monk against the Atlanta Railway & Power Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Payne & Tye, for plaintiff in error.
Julius L. Brown and Arnold & Arnold, for defendant in error.
Mrs. Monk was run over by a car of the Atlanta Railway & Power Company, and received injuries which resulted in the loss of both her arms. At the time of her injuries she was employed as a dancer by the Canton Carnival Company, which had, for two weeks previously, been giving shows upon what was known as the "Midway," at an exposition or fair held at Exposition Park, just outside the city of Atlanta. The fair had just closed, and the Canton Carnival Company was preparing to move its effects and send its performers to another city. About half past 11 o'clock at night, Mrs. Monk, with her husband and other employés of the Canton Carnival Company, was at Exposition Park, where she intended to board the train which was to take her from the city. The party of which she was a member were in a part of the fair grounds somewhat distant from the place where the train was which they were to board, and it was their intention to ride to that place on a trolley car of the Atlanta Railway & Power Company, which ran over a spur track connecting with the track of the Southern Railway Company. This spur track ran over a trestle about 400 feet long, on the sides of which were placed planks which might be used by pedestrians as a footway. The stream of water which the trestle spanned was between Mrs. Monk's party and the train they wished to take. According to the plaintiff's evidence, the party waited at the end of the trestle for a trolley car to take them to the train. A car passed them going in the opposite direction, towards the terminus of the spur track inside the fair grounds, and it was in evidence (though controverted by the defendant) that, as the car passed the plaintiff's party at the end of the trestle, it stopped to discharge a passenger, and that the motorman was notified to stop for the party on his return passage. The evidence is conflicting as to the length of time that elapsed before the car returned. At all events, the party had started to cross the trestle on foot, and were overtaken, and the plaintiff injured, before they had gotten halfway across. At the terminus the car had taken on two "trailers," one a baggage car and the other what was known as a "gondola car." The evidence is hopelessly conflicting as to the speed of the cars upon the trestle, the opportunity of the motorman to have seen the plaintiff in time to have avoided the injuries, and the efforts, if any, made by him to stop the cars after he discovered their presence upon the trestle. Several witnesses for the plaintiff, including the plaintiff herself, testified that he not only had ample opportunity to have seen her, but that he actually did see her, in time to stop his cars before striking her; that, as she realized her danger, she cried out pleadingly, "Stop, oh please stop!" and that he replied, "Go to hell!" and made no effort whatever to check the speed of the cars.
The plaintiff's suit, as originally brought, was a joint action against the Atlanta Railway & Power Company and the Southern Railway Company, but a nonsuit was granted as to the last-named defendant, and no exception was taken thereto. The original petition alleged that the employés of the street railroad company had warning of the plaintiff's presence on the trestle before the car went thereon; that the motorman in charge of the cars had ample opportunity to stop them, after discovering the plaintiff's danger, in time to have avoided injuring her, and that he was guilty of gross and wanton negligence in not doing so. It also alleged that the trestle had been constructed for the use of pedestrians; that cross-ties of extra length had been used in its construction, and planks placed on the edges of the cross-ties on either side of the track for use as a footway; that the street car company had invited pedestrians to use the trestle as a means of crossing the branch, and that it had been so used for more than six years; and negligence was charged against the company in failing to exercise ordinary care in guarding against injury to persons who might be on the trestle, and in failing to stop the cars after the position of the plaintiff should, in the exercise of ordinary care, have been discovered. By amendment it was alleged that "the defendants were grossly negligent in failing to have a car of sufficient size and power to transport the large railway cars" which were in the train that ran over the plaintiff; that the trolley car which was used was inadequate for the service sought to be imposed upon it, and was overloaded at the time of the injury. This amendment was allowed over the objection of the defendants that it set up a new cause of action, and that its allegations were irrelevant, incompetent, and illegal, and did not set forth any act of negligence that would authorize a recovery. Exceptions pendente lite were filed to the allowance of the amendment, and error was assigned thereon in the bill of exceptions to this court. The answer of the street car company was, in effect, a general denial of all allegations of negligence in the petition and the amendment. In submitting the case to the jury the court charged, as matter of law, that the plaintiff was a trespasser on the trestle at the time of her injuries, and that the company owed her no duty whatever until her presence upon the trestle was discovered, when the duty arose to exercise ordinary care to avoid injuring her. A verdict was returned for the plaintiff for $10,000. The company moved for a new trial on numerous grounds. Its motion was overruled, and it excepted."
1. It is clear that the amendment which was allowed over the objection of the defendant charged against it negligence of an entirely different character from that alleged in the original petition, but whether or not this constituted a new cause of action we do not, in the view that we take of the case, feel called upon to decide. It may be conceded, for the sake of the argument, that the amendment was erroneously allowed. The court, however, in its charge to the jury instructed them as follows: ...
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