Barnett v. Savannah Elec. Co.
| Citation | 82 S.E. 910,15 Ga.App. 270 |
| Decision Date | 23 September 1914 |
| Docket Number | 5601. |
| Parties | BARNETT v. SAVANNAH ELECTRIC CO. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
So far as the evidence is concerned, a verdict for either party would have been authorized.
No error in the charge of the court requires a new trial.
(a) In the absence of an allegation that the defendant or its servants were negligent in failing to keep proper lookout in anticipation of persons or children at, near, or upon the tracks of the defendant street car company, the instructions given were sufficient to direct the attention of the jury to testimony which had been offered in regard to the habits and custom on the street in question, and to instruct them as to the bearing of this testimony upon the particular acts of negligence which were alleged.
(b) An instruction to the effect that "ordinary care and diligence is the care and diligence which the street car company owes and owed to pedestrians upon the street and persons using the street, of whatever age," means the care and diligence which every prudent man would use under the peculiar circumstances, and is not subject to the criticism that it is an expression or intimation of opinion on the part of the court that there mght have been negligence on the part of some one in relation to the child alleged to have been injured, especially in view of the fact that the court had previously told the jury that the plaintiff, as an infant of tender years, was not chargeable with any duty to care for her own safety, and that no negligence of her parents could be imputed to her. Viewed in connection with the context in the charge, the instruction was favorable rather than unfavorable, to the plaintiff.
(c) In view of the instructions given, and in the absence of an appropriate request, the charge of the court as given was abstractly correct, and cannot be attacked because additional instructions which might have been appropriate were not given.
(d) The word "would" is often interchangeable with the word "should," and, as referring to the duties of the employé in the present case, it does not appear that the plaintiff was injured by reason of the fact that the court used the former rather than the latter word.
The court did not err in overruling the grounds of the motion for a new trial, based upon the evidence alleged to be newly discovered, since it was merely cumulative and impeaching of testimony already introduced upon the trial.
Error from City Court of Savannah; Davis Freeman, Judge.
Action by Annie Barnett, by her next friend, against the Savannah Electric Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Anderson Cann & Cann, C. N. Feidelson, and T. F. Walsh, Jr., all of Savannah, for plaintiff in error.
Osborne & Lawrence, of Savannah, for defendant in error.
The plaintiff, who is a child less than three years old, brought an action by her next friend against the Savannah Electric Company for damages on account of being run over by a car of the defendant, which cut off one of her feet. Upon the trial the jury returned a verdict for the defendant. The plaintiff excepts to the refusal of her motion for a new trial, upon the usual general grounds, and upon various exceptions to the charge of the court, and alleged newly discovered testimony. The petition alleged that the company was negligent: (a) Because the car was not equipped with air brakes; (b) because the car was not equipped with a fender; (c) because when the petitioner appeared in the street at or near the track, the motorman failed to use due diligence to stop the car and avoid striking her; and (d) because the car was operated at a rate of speed in excess of that permitted by a municipal ordinance. By amendment it was alleged that, had the car been equipped with a fender and with an air brake, the petitioner would not have been injured, if ordinary care had been exercised in their use, and that the speed of the car was between 10 and 20 miles an hour.
The evidence was in sharp conflict as to the material issues before the jury. According to the testimony for the plaintiff, the child started across the street in plain view of the motorman. No bell was rung, nor any attempt made to stop the car until it was almost upon her. Some of the witnesses for the plaintiff testified that the car was going very rapidly, and some that it was going slowly. All the witnesses for the plaintiff agreed that the car had no fender, and it may be inferred from their testimony that the car either did not have air brakes, or, if so, there was a failure to use them as promptly and efficiently as they could have been used. On the other hand, there was testimony in behalf of the defendant, in addition to that which came from its motorman and conductor, that the child was on the edge of the sidewalk, at or near a tree about five feet in circumference, and that just as the car was approaching she ran rapidly across the street directly in front of the approaching car, crossed the first rail, and tripped on the second rail, and fell with all of her body beyond the track except the foot and ankle, which were cut off. These witnesses testified that the motorman applied the brakes and made every possible effort to stop the car, and, in fact, he did succeed in stopping it so quickly that only the front truck of the car passed over the child's leg. The testimony in behalf of the defendant was positive that the car was equipped with a fender and with air brakes, which were suitable and operative. As to the various minor details corroborative of the contentions of each party the evidence was as strongly...
To continue reading
Request your trial