Augusta Ry. Co. v. Glover

• Decision Date: 05 June 1893
• Citation: 18 S.E. 406,92 Ga. 132
• Parties: AUGUSTA RY. CO. v. GLOVER.
• Court: Georgia Supreme Court

18 S.E. 406

92 Ga. 132

AUGUSTA RY. CO. v. GLOVER.

Supreme Court of Georgia

June 5, 1893

Syllabus by the Court.

1. The declaration sets forth a cause of action.

2. Where there is no special demurrer to a declaration, it is not error to refuse to strike from the latter certain words as not relevant either in matter of form or substance, the motion to strike being made orally at the trial.

3. The right of action given by the act of October 27, 1887, to a mother for the homicide of her son, upon whom she is dependent in whole or in part for support, is not confined to residents of this state, but belongs alike to all mothers under like circumstances, wheresoever they may reside.

4. It is no bar to a suit by the mother for the homicide of her minor son, that the father has a pending suit in which he claims damage for the loss of the son's services up to the time the latter would have arrived at his majority.

5. Evidence of the father's physical disability to labor is admissible in behalf of the mother, as tending to show her partial dependence on the minor son whose homicide is complained of.

6. Where father and mother and minor children all reside together, and are mutually dependent upon the labor of the family for support, a minor child over 15 years of age, whose labor, or the proceeds of it, come into the common stock, is to be considered as contributing substantially to the support of the mother.

7. The fact that the passenger killed had never before ridden upon an electric car was admisible in evidence, for the purpose at least, of illustrating the cause of his failure to alight from the car in safety.

8. An electric railway company which has provided its cars with gates to prevent passengers from alighting on the side next to a parallel track cannot defend itself against the charge of negligence in not keeping one of the gates closed, by the evidence of its president "as to observations he had made in reference to electric street-car lines, cable-car lines, and other street-car lines operating on double tracks that he had made recently in various cities of the United States in reference to the use of gates on the cars, and to show that gates are not used."

9. Although there may be no negligence whatever in the failure of an electric street railway company to have gates to the platform of its cars, for the purpose of guarding against accidents to passengers by preventing them from leaving the cars on the side next to a parallel track of the same company, in the street, yet when a particular company has such gates to the platforms of its cars, not to keep them closed may or may not be negligence in the given instance and this is a question of fact for the jury.

10. Although it is the duty of a street-car company to select a reasonably safe place for landing passengers wherever it may stop a car for that purpose, yet, if the place be safe for a passenger to get off while the car is at rest, the company is not responsible for any peril which the passenger incurs without its fault, from attempting to alight after the stoppage has terminated and the car has been put in motion, provided a reasonable time for alighting was allowed while the car was at rest, and the conductor did not know that the particular passenger intended to get off at that place, and did not see him attempting to get off in time to warn or prevent him from so doing while the car was in motion.

11. When a car stops because of an obstruction on the track, and not to afford any passenger an opportunity for getting off, the company is not responsible for the safety of the place as one for getting off, whether the car, at the time the passenger undertakes to do so, be in motion or at rest, the conductor not seeing the passenger, or being aware of his purpose, at the time the attempt to get off is made.

12. Improper statements made by counsel in argument, which the presiding judge did not hear, and to which his attention was not called, either then, or afterwards during the progress of the trial, not even by any request to charge the jury, will not require or justify the grant of a new trial.

13. The charge of the court touching the measure of recovery was subject to misconstruction, and was not quite full enough as to the right of the jury to avail themselves of facts in the evidence, irrespective of the mortality tables.

14. In view of the facts of the case and the general charge of the court to the jury, there was no error in denying any of the request to charge made by the defendant below.

15. It was not error to allow the plaintiff to write off part of the damages found by the jury.

Error from city court of Richmond; W. F. Eve, Judge.

Action by Barbara E. Glover against the Augusta Railway Company to recover for the death of plaintiff's son. Plaintiff had judgment, and a new trial was denied. Defendant brings error. Reversed.

Improper statements made by counsel in argument, which the presiding judge did not hear, and to which his attention was not called, either then or afterwards, during the progress of the trial, will not justify a new trial.

The following is the official report:

On January 13, 1891, Mrs. Glover sued the railway company for damages for the killing of her son, who was alleged to have been, at the time of his death, 15 years and 5 months old. The declaration alleged that her son was single, and had no child or children, that she was dependent on him, and that he contributed to her support; further, that he boarded one of defendant's street cars propelled by electricity in Augusta, for the purpose of going to the Georgia Railroad depot, took his seat, and paid his fare; that when the car reached a certain point, about opposite the Union Depot, it came to a stop, and her son got off the car from the rear platform, near to the parallel street railroad track of defendant, at which moment another of defendant's cars running on the parallel track in an opposite direction to that of the car from which he had just dismounted, ran over him, killing him; that he was not familiar with the method in which the cars were run and operated; that he resided in the country, and had never before ridden on said electric cars; that the approach of the car which ran over him was wholly unexpected and unseen by him until too late to get out of the way; that it was the duty of defendant's agents in charge of the car on which he had ridden to the depot, to have had the platform gate next to the parallel track on the rear end of the car closed, and to have cautioned and seen that he did not leave the car from that side, which duties they negligently and carelessly failed to perform; that it was also the duty of defendant's agents in charge of the car which ran over him to have slowed up as it approached the point where it was to pass the other car, which duty was wholly disregarded, the car being actually run at the time at the rate of 12 miles per hour, a rate not only positively prohibited by the city ordinances, but which, in the absence of such prohibition, would at the locality have been an act of gross carelessness; that the motorman in charge of the car that ran over her son, at the moment or just before, was negligently engaged in a conversation with the conductor on his (the motorman's) car, instead of being on the lookout ahead of his car, as was his duty. Contemporaneously with the filing of the mother's suit, the father filed his suit in the same court, alleging the same acts of negligence as causing the death of his son, and claiming damages by reason of having been deprived of his son's services up to the time of his majority. The defendant demurred to the declaration of the mother on the grounds: (1) It set forth no legal cause of action. (2) There was no allegation that deceased could not have seen the car approaching him in time to have avoided coming in collision with it, or that he made any effort to avoid coming in collision with it. (3) Plaintiff failed to allege that the point at which he left the car was the regular stopping place, or that the stopping of the car was for the purpose of taking on or letting passengers off. If it was not stopped for such purposes, then plaintiff failed to allege that deceased gave any notice of his desire or intention to leave the car, or that defendant's servants in any other way had notice of such intention. (4) Because plaintiff failed to allege that defendant had any notice of deceased's want of familiarity with the running and operation of electric cars, or that his size or appearance were such as to cause notice thereof to be taken by defendant's servants. (5) Plaintiff failed to allege that she is a widow, or is living separate from her husband, or in what way she was dependent on her child, it appearing that he was only 15 years and 5 months old, and there being no allegation as to his ever having worked or earned money. Defendant also filed its plea in abatement, alleging the pendency of the two suits for the same cause of action, and that they were inconsistent, and praying that plaintiff be required to elect with which of the suits he or she would proceed, and other pleas. The father's case standing first on the docket when the court met to assign cases, the defendant insisted that the cases should be assigned in the order in which they appeared, and called the attention of the court to the plea in abatement. Thereupon the attorneys for the father, the attorneys in the two cases being the same, dismissed the father's case. The court overruled the defendant's demurrer, and struck defendant's amended plea, to the effect that plaintiff and her son, being residents of South Carolina at the time of his death and at the time of the trial, and ever since, could not recover under ...