Cent. R. Co v. Brinson

• Decision Date: 28 February 1880
• Citation: 64 Ga. 476
• Parties: Central R. Co. v. Brinson
• Court: Georgia Supreme Court

64 Ga. 476

Central R. Co. v. Brinson

Supreme Court of the State of Georgia

(February Term, 1880.)

Page 476*A. R. Lawton; J. J. Jones, for plaintiff in error.

H. C. Glisson; E. L. Brinson; A. M. Rodgers; Wm. Gibson; M. P. Carroll, for defendant.

Crawford, Justice.

The Central Railroad and Banking Company was sued by James Brinson, as next friend of Jefferson Brinson, to recover damages for the careless running of its train of cars over him, whereby he lost his right foot. To this suit was filed the plea of the general issue of not guilty, and a special plea in bar which was, that James Brinson, the father of the plaintiff, had brought his individual suit for the same cause of action, and for the same injury which was then pending and undetermined in the same court. On motion of plaintiff's counsel, this special plea was stricken and the cause was tried under the general issue alone. Upon the trial the jury returned a verdict for the plaintiff for the sum of ten thousand dollars; a new trial was moved upon various grounds set out in the record, which was refused by the court, and the defendant excepted.

The first ground in the defendant's motion was "because the court erred in striking out, on motion of plaintiff's counsel, the plea of defendant which set up as a defense to this suit, the pendency in this court of another suit by James Brinson, the plaintiff, for the same injury and for the same cause of action against the same defendant."

1. A minor, being damaged in his person, may bring suit to recover for any permanent injury which he has sustained reaching beyond his majority, whilst the father may sue for any trespass done or damage sustained whereby he loses the services of this child, as also for any expense incurred in and about the healing and restoring of the said child to health. The striking out of the special plea, therefore, was not error. Reeves' Dom.

Rel., 423-4-5; 31 Penn., 372; 15 Ga., 349.

*2. The second ground of error complained of was the refusal of the court to charge as follows: "If the proof satisfies you that this accident happened on the line of the Augusta and Savannah Railroad, plaintiff cannot recover on his declaration in this case, which alleges that the injuries were done on the road of the Central Railroad and Banking Company of Georgia, the two corporations being separate and distinct."

The declaration of the plaintiff alleged that the Central Railroad and Banking Company, by the careless and negligent manner of running a certain engine and train of cars over their road in said county, did run over and crush the foot of the plaintiff, thereby causing him to lose the same. The proof clearly established the fact to be that it was not done on the Central Railroad, but on the Augusta and Savannah Road. These railroads are two separate and distinct legal entities, passing over and occupying different parts of the territory of the county of Burke, and suits against them should recognise that fact. Although the one may be leased to and operated by the other, thereby making itselfresponsible for acts done upon the road which is leased, yet neither loses its identity, and any tort committed on the one or the other should be so alleged and proved. This becomes the more necessary in view of the fact that to allege that the injury done was done upon the Central Railroad "in said county, " without other or further description of the particular locality, would not be, by the record, a bar to another action for the same injury committed on the Augusta and Savannah Railroad. This request, therefore, was one which the defendant had a right to ask, and which should have been given by the court; the effect of which would have been but an amendment to the declaration thereby harmonizing the pleadings with the proof.

3. The other grounds upon which the plaintiff in error rests its motion for a new trial, consist in charges given and charges refused, upon the different theories of the respective parties as to the law governing the case, two of which need only be cited here.

*The couns...