Cent. R.R. & Banking Co v. Phillips

• Citation: 91 Ga. 626,17 S.E. 952
• Parties: CENTRAL RAILROAD & BANKING CO. v. PHILLIPS.
• Decision Date: 17 April 1893
• Court: Supreme Court of Georgia

17 S.E. 952

91 Ga. 626

CENTRAL RAILROAD & BANKING CO.

v.PHILLIPS.

Supreme Court of Georgia.

April 17, 1893.

Trial—Excluding Witnesses from Court Room —Discretion of Court—Personal Injuries— Contributory Negligence—Youth of Plaintiff.

1. Under the facts there was no abuse of discretion in subjecting the conductor to the ordinary rule applicable to the sequestration of witnesses.

2. As by the law of this state a boy over 14 years of age is presumably capable of committing crime, he is presumptively chargeable with diligence for his own safety against palpable and manifest peril, such as that of jumping from a railway train in rapid motion. In the absence of any evidence of the want of ordinary capacity in the particular boy, he should not be treated as a child of "tender years, " but as a young person who has passed that period, and become chargeable with such diligence as might fairly be expected of the class and condition to which he belongs.

3. There was no error in admitting evidence, and none in the charge of the court, except upon the question ruled on in the preceding note.

(Syllabus by the Court.)

Error from superior court, Bibb county; A. L. Miller, Judge.

Action for personal Injuries by Henry Phillips, by his next friend, against the Central Railroad & Banking Company. Plaintiff had judgment, from which, and an order denying a new trial, defendant brings error. Reversed.

R. F. Lyon, for plaintiff in error.

Dessau & Bartlett, for defendant in error.

SIMMONS, J. The plaintiff, a boy 15 years of age, jumped from a railway train which was running at the rate of 25 miles an hour, and broke his leg. He sued the railroad company, alleging in his declaration that he went on the train before it started, for the purpose of getting some keys from his sister, who was a passenger; that the train started while he was on it, and before he could alight its speed became so great that he could not get out without endangering his life or person; that when the conductor demanded his fare he explained these facts, and that he did not have enough money to pay his fare to the next station, but his sister offered the conductor 20 cents, which the conductor took; that the conductor then threatened to take him to Savannah, and put him in jail, and summoned the brake-man and another member of the train's crew for the ostensible purpose of arresting him and locking him up and carrying him to Savannah; that the conductor, by his threats and acts, so frightened and alarmed him that, believing and thinking the conductor would carry his threats into execution, he broke away from the brakeman and the other member of the crew, and in order to keep from being locked up and carried to Savannah and put in jail, he jumped from the train while it was in rapid motion, and was injured, etc. He recovered a verdict for $1,000, and the defendant made a motion for a new trial, which was overruled, and it excepted.

1. It appears from the motion for a new trial that, after all the witnesses had taken oath, and the witnesses for the plaintiff, in accordance with the request of counsel for the defendant, had been sent out of the court room, so as not to be present during the examination, the court, at the instance of counsel for the plaintiff, sent out the defendant's witnesses also. Counsel for the defendant requested the court to allow one of his witnesses to remain in the court room as this witness was the conductor, and stood in the place of the defendant in the case, and was the only representative of the defendant who was acquainted with the facts as they occurred, and counsel desired his assistance in the examination of witnesses for the defendant as well as for the plaintiff. The refusal of this application...