Auld v. Southern Ry. Co

• Decision Date: 10 May 1911
• Citation: 71 S.E. 426,136 Ga. 266
• Parties: AULD. v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

136 Ga. 266

71 S.E. 426

AULD.

v.SOUTHERN RY. CO.

Supreme Court of Georgia.

May 10, 1911.

(Syllabus by the Court.)

1. Carriers (§ 347^*) — Injuries to Passengers—Negligence — Contributory Negligence.

The act of crossing from one car platform to another on a moving train is not per se negligence, in the absence of a rule or notice warning the passengers from such act. A passenger who undertakes to go from one car to another while the train is in motion assumes only the risk incident to such undertaking in the ordinary operation of the train; and if such passenger is injured by being thrown from the platform by a sudden jerk, questions of negligence of the defendant in causing the injury and of the passenger's contributory negligence are for the jury.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1346-1397; Dec. Dig. § 347.*]

2. Carriers (§ 317*)—Injuries to Passenger—Passing from One Car to Another.

In a suit against a carrier for an injury to a passenger from being precipitated from a moving train while crossing from one coach to another, testimony of a known usage or custom of passengers to cross is competent evidence, not to justify or excuse the passenger from attempting to cross when it would be an obviously hazardous act, but as illustrating the character and nature of the act as bearing on the passenger's alleged contributory negligence in crossing.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1295-1306; Dec. Dig. § 317.*]

3. Evidence (§ 473*)—Opinion Evidence.

If data supplied by a witness can be placed before the jury in such a way that they may draw the inference as well as the witness, it is superfluous to add by way of testimony the inference which the jury may well draw for themselves.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2220-2223; Dec. Dig. § 473.*]

Error from Superior Court, De Kalb County; E. J. Reagan, Judge.

Action by W. N. Auld, administrator of Eliza Auld, against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Burton Smith, for plaintiff in error.

McDaniel, Alston & Black, for defendant in error.

EVANS, P. J. W. N. Auld, administrator of Mrs. Eliza Auld, brought suit, in the superior court of De Kalb county, against the Southern Railway Company, to recover damages for the alleged wrongful death of the plaintiff's intestate. The injury resulting in Mrs. Auld's death occurred in the state of South Carolina, and the action was in virtue of a South Carolina statute authorizing suit by an administrator. The plaintiff was nonsuited.

The substance of the evidence was that Mrs. Auld, a married woman, 44 years of age, the mother of seven children, on the day previous to her death had been discharged from a sanitarium, and was returning to her home in company with her husband and brother. She had been in failing health fortwo or three years before being sent to the sanitarium. She was despondent, morose, and gloomy. At the time of her injury her mental and physical health was a great deal better than it had been. Her party boarded the cars of the defendant at Toccoa, Ga. The particular coach in which she entered was vestibuled. The coach in the rear was not vestibuled. The train was about two hours behind time. The country traversed by the defendant's road was mountainous. The train was running fast, trying to catch up the lost time. A passenger testified that the husband and brother were in the rear coach; that he observed her leave her seat, and go to the rear of the car, and pass through the door. * * * As she left the door there was a sudden plunge or jerk of the train, and we all had to hold our seats, just at the point she was thrown from the train." She was found lying near the track in an unconscious condition, and died from her injuries. One of the plaintiff's witnesses testified that "the train was about two hours late that night, " and in the absence of any other testimony on the subject we infer that the injury occurred at night.

1. It is not negligence as matter of law for a passenger to pass from one coach to another while the train is in motion. Whether or not a passenger is negligent in so doing depends upon the facts and circumstances of the particular case. Cotchett v. S. & T. Ry. Co., 84 Ga. 68T, 11 S. E. 553; A. S. Ry. Co. v. Snider, 118 Ga. 146, 44 S. E. 1005. Some early cases may be found in other jurisdictions in which it is said that a passenger's attempt to cross the platforms between the coaches while the train was running was a negligent act. The later cases are harmonious that it is not per se negligence for a passenger to go from one coach to another while the train is m motion. The modern view results from the great improvement in constructing cars, and the tacit or implied invitation by railroad companies in the make-up of the trains, including a smoking car, a dining car, and other coaches, that the passenger may pass from one to the other for his comfort or...