Augusta Southern R. Co. v. McDade

• Citation: 31 S.E. 420,105 Ga. 134
• Parties: AUGUSTA SOUTHERN R. CO. v. McDADE.
• Decision Date: 23 July 1898
• Court: Georgia Supreme Court

31 S.E. 420

105 Ga. 134

AUGUSTA SOUTHERN R. CO. v. McDADE.

Supreme Court of Georgia

July 23, 1898

Syllabus by the Court.

1. Neither the stockholders nor the employés of a railroad company which had leased the property and franchises of another such company, after it had incurred a liability, are because of their being such stockholders and employés, and for this reason alone, disqualified from serving as jurors on the trial of an action against the latter. In order to render these persons incompetent, it should further appear that because of their connection with the lessee company, or otherwise, they have some interest in the result of the trial. (a) Were this not so, it does not appear that any juror in the present case was excluded from the panel by reason of alleged disqualification.

2. The fact that the judge of a city court manages the financial affairs of his county does not disqualify him from presiding in an action against a railroad company of which that county is a stockholder, the judge himself having no personal or pecuniary interest in the result of such an action.

3. Unless the defendant's nonliability followed as a necessary legal conclusion from a given state of facts, it would not, in the trial of an action, be proper for the judge to instruct the jury that, under such a state of facts, there could be no recovery for the plaintiff.

4. What risks are usually incident to a given business must be determined by the jury under the facts and circumstances of each case; and while the judge may properly instruct the jury that, as a general rule, an employé assumes such risks, a refusal to specify particular dangers or perils, and inform the jury that these are within the rule, is right.

5. Proof that a deceased employé of a railroad company who was killed by the running of its train, was without fault, raises a presumption that the company was in fault. Proof that the servants of the company who were operating the train were in fault puts upon the company the burden of showing that the deceased himself was negligent. (a) Certain charges complained of in the present case were, though not so worded in effect as above stated.

6. So much of section 2321 of the Civil Code as is embraced in the phrase "the presumption in all cases being against the company" is inapplicable to a case where a railroad company is sued for the killing of an employé, unless the plaintiff affirmatively shows that the deceased was free from fault; and consequently, on the trial of such a case, the law embodied in this section should not, either literally or substantially, be given in charge to the jury without plainly and distinctly stating the qualification herein indicated.

7. In order to warrant a recovery, under section 3828 of the Civil Code, by a mother for the homicide of her child, it must appear, not only that the child contributed to her support but also that she was dependent upon the child for such support. (a) A charge which eliminates from the consideration of the jury the latter element is inaccurate.

8. Assignments of error relating to the rejection of evidence cannot be considered when it does not appear what, if any, objection was made thereto when offered. The evidence in the present case requiring a finding that the deceased was an employé of the defendant, the charges relating to this matter, and complained of in the motion for a new trial, were not prejudicial to the latter, and the requests to charge which assumed that the deceased was a volunteer were properly refused.

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

Action by Ophelia D. McDade against the Augusta Southern Railroad Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Leonard Phinizy and J. R. Lamar, for plaintiff in error.

Boykin Wright and J. C. C. Black, for defendant in error.

FISH J.

1. It appeared that, after plaintiff's son had been killed by the defendant, the Augusta Southern Railroad Company leased in perpetuity its property and franchises to the South Carolina & Georgia Railroad Company. The latter company was not a party to the suit. The trial judge asked the panel of jurors if any of them were stockholders or employés of the lessee company. Certainly, stockholders and employés of the lessee company were not disqualified from serving as jurors on the trial of an action against the lessor company, it not appearing that, by reason of their connection with the lessee company or otherwise, they had any interest in the result of the trial. As no juror, however, was set aside for the supposed disqualification, no harm was done, and there can be nothing in the assignment of error on this point.

2. One of the grounds of the motion for new trial was that Judge Eve, who presided at the trial of the case, was disqualified by reason of the fact that he was judge of the city court of Richmond county, and commissioner of roads and revenues for it, and that such county was the owner of 13 7/16 shares of the capital stock of the defendant company, and that these facts were unknown to defendant's counsel at the time of the trial. It was not pretended that Judge Eve had any personal or pecuniary interest in the result of the action, and the mere fact that he, by virtue of being the judge of the city court of Richmond county, managed its financial affairs, did not disqualify him from presiding in the case. Even if it had, there was no showing that the officers of the defendant company were ignorant of the facts when the case was tried.

3. Another ground of the motion was the refusal of the judge to give in charge to the jury the following written request "If you believe from the evidence that plaintiff's son met his death by being tripped or thrown in passing out between the cars, after the coupling had been made, and that it was...