Cent. R.R. & Banking Co v. Kitchens

• Citation: 9 S.E. 827,83 Ga. 83
• Court: Supreme Court of Georgia
• Decision Date: 22 May 1889
• Parties: Central Railroad & Banking Co. v. Kitchens.

9 S.E. 827

(83 Ga. 83)

Central Railroad & Banking Co.

v.Kitchens.

Supreme Court of Georgia.

May 22, 1889.

Negligence—Pleading—Amendment—Declarations.

1. Homicide being alleged, the mode of committing it may be particularly specified by amendment, without adding a new cause of action.

2. Though declarations be no part of the res gestce, their admission in evidence, unless objected to on the proper ground, is no cause for a new trial.

3. A rule of a railroad company, applicable alike to all persons of a given class, is not to be evaded by the failure of one person of the class to observe the rule, when another person of the same class is injured thereby.

4. Negligence is a question for the jury.

5. An employe of a railway company being himself at fault, and thus contributing to his death, his widow cannot recover.

(Syllabus by the Court.)

Error from city court of Macon; Harris, Judge.

R. F. Lyon, for plaintiff in error. M. G. Bayne, for defendant in error.

Bleckley, C. J. The declaration alleged that the company had injured and damaged the plaintiff in the sum of $25,000, for that on the——day of May, 1888, by the careless running of its cars, the company ran over, mutilated, and killed her husband, Abe Kitchens, without any carelessness or fault upon his part, but entirely by the negligence of the agents of said company in running the cars thereof; whereby she was injured and damaged, etc. The company demurred to the declaration, on the ground that it set forth no sufficient cause of action, there being no specific or particular act of negligence alleged. The demurrer was overruled, and the plaintiff was allowed to amend her deela-ration, to the effect that her husband was an employe of the company, and was under a car at work in the line of his duty, in pursuance of an order of Tom Troutman, who was his superior, and while doing said work a switch-engine struck back against a large number of cars, including the one he was under, and without any fault on his part he was run over, and so injured that he died. This amendment was objected to, on the ground that there was nothing to amend by, and that the amendment made a new cause of action. The case was tried, and, a motion for nonsuit being overruled, there was a verdict for the plaintiff. The company made a motion for a new trial on the general grounds, and on several special grounds, one of which was that certain declarations of the deceased were admitted in evidence; another that the court erred in charging that it was the duty of Troutman to put up the danger signal for the protection of Kitchens as well as himself, and Troutman failed to do it, and if Kitchens relied upon this, and it was not done, then the jury might be justified in finding negligence on Troutman's part, and none on the...