Atlanta & W.P. Ry. Co. v. Newton

• Decision Date: 09 May 1890
• Citation: 11 S.E. 776,85 Ga. 517
• Parties: ATLANTA & W. P. RY. CO. v. NEWTON.
• Court: Georgia Supreme Court

11 S.E. 776

85 Ga. 517

ATLANTA & W. P. RY. CO. v. NEWTON.

Supreme Court of Georgia

May 9, 1890

Error from superior court, Traup county; HARRIS, Judge.

Calhoun King & Spaulding, Thos. H. Whitaker, and Henry E. Ware, for plaintiff in error.

F. M Longley, for defendant in error.

SIMMONS J.

Mrs Newton sued the railroad company for damages for the homicide of her husband. The jury returned a verdict in her favor, and the railroad company made a motion for a new trial, which was overruled by the court, and defendant excepted.

1. The fifth and sixth grounds of the motion complain of the admission in evidence of certain sayings, after the homicide of a person alleged to have been the engineer on the train. This testimony was objected to on the ground that it was not shown that the person making the statement was an employe of the defendant, so that his sayings in and about the occurrence were competent evidence to bind it. The court submitted the question to the jury, for them to find whether the person who made the statement was the engineer or not. We do not think there was any error in admitting this testimony over the objection that was made to it at the time of the trial. If it was a doubtful question whether the person who made the statement was the engineer of the defendant, or of some other person, the court was right in submitting that question to the jury. If the objection had been that the statement of the engineer, made after the transaction had ended, was inadmissible, it would present a different question. We have read the evidence sent up in this record, and we deem it wholly immaterial whether this statement was made by the engineer of the defendant or not, or whether it was admissible or not, because the evidence clearly shows that the defendant was negligent in running its cars at a high rate of speed within the town of La Grange, and over the public crossing, and in not "checking the speed thereof so as to stop in time, should any person or thing be crossing said track on said road," as required by section 708 of the Code. It seems to us from this evidence that the only defense this company can make to this action is to show that the injury was done by the consent of the husband, or that he could have avoided it by the exercise or ordinary care; or, in mitigation of damages, that he contributed to the injury.

2. The eighth ground of the motion complains that the court permitted a witness for the plaintiff to testify that "Mr. Newton's character was that of a prudent and cautious man." We think the court erred in admitting this evidence for the purpose for which it seems to have been used by the plaintiff in the court below. One of the theories of the defendant was that the husband of the plaintiff could have avoided this injury by the exercise of ordinary care and diligence at the time he was injured. The question at issue before the jury, therefore, was as to his conduct at that particular time, not as to whether he was a "prudent and cautious" man, ordinarily, or not. In the case of Morris v. Town of East Haven, 41 Conn. 254, the court said: "Every case has, of course, its peculiar circumstances, and these must be taken into consideration in determining whether or not in that particular case reasonable care was exercised. Hence what would be reasonable care in one case might fall far short of it in another, and consequently the question whether it was exercised in one case would throw no light upon the question whether it was exercised in another. *** It might as well be proved that a party was negligent on a certain occasion, by showing that he had been negligent on other occasions where other parties had been injured." In the case of Chase v. Railroad, 77 Me. 62, it was held: "In an action for personal injuries received by a collision at a railroad crossing, evidence will not be received to show the general character and habits of the traveler for carefulness, as bearing upon the question of due care on his part, though the injuries occasioned death before he could tell how the accident happened, and no one saw him at the time of the collision."

3. The ninth, tenth, and eleventh grounds of the motion complain of the admissibility of the opinion of witnesses as to what the deceased could have made at certain occupations other than the one which he followed. One of the witnesses for the plaintiff testified that he supposed the deceased "could have made $500 or $600 per year, teaching school in a country school; as a mechanic he could have made $500 or $600 per year;...