Cent. Of Ga. Ry. Co v. Prior

• Decision Date: 01 October 1914
• Docket Number: (No. 611.)
• Citation: 83 S.E. 117,142 Ga. 536
• Parties: CENTRAL OF GEORGIA RY. CO. v. PRIOR.
• Court: Georgia Supreme Court

83 S.E. 117

142 Ga. 536

CENTRAL OF GEORGIA RY. CO.

v.PRIOR.

(No. 611.)

Supreme Court of Georgia.

Oct. 1, 1914.

(Syllabus by the Court.)

1. Railroads (§ 394^*)—Injury to Person on Track—Pleading.

A plaintiff may set out a cause of action in separate counts, so as to meet the possible phases of the evidence. Where the cause of action is single, and an element of the plaintiff's case is the defendant's knowledge of a particular fact, allegation of actual and implied knowledge of such fact should not be made in one count, and the defect may be taken advantage of by special demurrer.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1331-1338; Dec. Dig. § 394.*]

2. Appeal and Error (§ 1050*)—Review-Prejudicial Error — Admission of Evidence.

The statute (Civil Code 1910, § 4424) gives to a widow, for the wrongful homicide of her husband, a right of action to recover the full value of his life. Proof that the decedent was the sole support of the widow and her children is irrelevant, and the allowance of such evidence is harmful error.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^1157, 4166; Dec. Dig. § 1050.*]

3. Railroads (§ 401*)—Injury to Person on Track—Contributory Negligence — Instructions.

It is declared in the Civil Code, § 2781, that no person shall recover damages from a railroad company for an injury caused by the injured person's own negligence; and in a suit for a negligent homicide, the failure to charge this principle is error.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1382-1390; Dec. Dig. § 401.*]

4. Contributory Negligence.

It was error to fail to charge, in this case, that if the plaintiff's husband could have avoided the consequences to himself caused by the defendant's negligence, if the defendant was negligent as alleged, the plaintiff could not recover.

Error from Superior Court, Laurens County; Frank Park, Judge.

Action by Alice Prior against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

H. W. Johnson, of Savannah, for plaintiff in error.

Hall & Roberts and Guerry & Son, all of Macon, for defendant in error.

EVANS, P. J. The widow of Robert Prior sued the railroad company to recover damages for his alleged wrongful death. It was alleged that the decedent was using a footpath that ran alongside the edge of the railroad track, commonly used by the public for many years, with the knowledge and assent of the railroad company, when he was suddenly seized with cramp, to which he was at times subject, and which rendered him helpless and unconscious; and that in this condition he was forced to stop, and in doing so became seated on the end of a cross-tie, with his face in his hands, where he was struck and killed by a passenger train of the defendant. The petition was three times amended. In both the petition and the amendments it was alleged conjunctively that the defendant's agents in charge of the engine saw the decedent in his perilous condition, and made no effort to stop the train; and also that, in view of certain allegations, the defendants owed a duty to discover the presence of the decedent on the track, and that the defendant's agents could have discovered his presence on the track in his perilous condition, in the exercise of ordinary care. The defendant specially demurred to the petition as amended, on the ground that its allegations were conflicting and ambiguous, inasmuch as the petition charged the defendant's agents with actual knowledge, and also with implied notice of the decedent's presence on the track. The demurrer was overruled, and the verdict was rendered for the plaintiff.

1. Certainty of statement is one of the great aims of pleading; and this cannot be attained if the plaintiff in the same count be permitted to base his case upon inconsistent allegations. A defendant is entitled to be informed of the facts upon which the plaintiff bases his action. Where the cause of action arises out of a single transaction, the details of the transactions should not be alleged, so as to be contradictory. A plaintiff cannot always anticipate what the testimony in a case may develop, and, to meet the possible phases of the evidence, he may state his cause of action in separate counts. Gainesville & Ry. Co. v. Austin, 122 Ga. 823, 50 S. E. 983. The defendant was entitled...