Central R.R. v. Whitehead
| Decision Date | 02 April 1885 |
| Citation | 74 Ga. 441 |
| Parties | THE CENTRAL RAILROAD v. WHITEHEAD et al. |
| Court | Georgia Supreme Court |
February Term, 1885.
HALL J., dissenting from the views of a majority of the court:
1. Suit was brought against one railroad for an injury occurring on the line of another; service was perfected by serving the agent of the first road, at the station on the line of the second where the accident occurred, and the defendant appeared and pleaded to the merits; afterwards an amendment to the declaration was filed, alleging that the road on which the injury occurred was held and operated under lease by the defendant; no surprise was claimed, no continuance asked, and no plea to the sufficiency of the service of the declaration as amended, filed, but at the trial objection was made to the amendment and the service:
Held, that appearance and pleading to the merits waived service, and estopped the defendant from denying it and as defendant has received notice and come into court, the object of service has been accomplished.
( a. ) Independently of this, the service was sufficient.
2. An amendment alleging that the railroad, on the line of which an injury was received, was held under a lease, and operated by another railroad company, against which suit was brought, was properly allowed.
3. While it might have been sufficient to have alleged that the defendant controlled and operated the road where the injury occurred, without specifying the particular character of the agreement under which this was done, yet where the plaintiff alleged with needless particularly or unnecessary circumstances what was material and necessary, and what might have been stated more generally, plaintiff was required to prove the fact as alleged; and therefore, having alleged that one railroad operated another under a lease, it was necessary to prove the same.
( a. ) If incompetent testimony was admitted over objection, and without it the plaintiff could not recover, a non-suit should be granted on motion, and if improperly refused, and a verdict was rendered for the plaintiff, a new trial should have been granted.
( b. ) Where it was alleged that one railroad was leased by another, and the evidence showed that the contract between them was in writing, it was not competent to show by parol that it was a lease.
4. It was error to charge that, if one purchased a ticket from one point on the line of a railroad to another, " when the company issued that ticket, it undertook to safely transport the plaintiff to this point of destination, and it was incumbent upon it to exercise ordinary care and diligence, and that duty did not end until the plaintiff was safely landed on the ground at McBean" (the point of destination. Such a charge was calculated to mislead the jury, and to lead them to think that, in addition to having called the station in the usual manner, and having stopped a sufficient length of time to enable the passenger to leave the train with safety, it would also be incumbent on the conductor to assist her in landing.
( a. ) Ordinary care is not the measure of diligence required of a railroad company towards passengers, but extraordinary care.
5. The court should have charged, as requested that " if the conductor went through the car and called the name of the station at the usual time and in the usual way, he had the right to expect that the passengers would act with the judgment and intelligence of human beings in moving out and taking care of themselves," and should not have added the qualification, " provided the agents of the company were in full discharge of their duty." The request stated the law correctly, but the qualification greatly impaired, if it did not destroy, its effect.
( a. ) The newly discovered evidence in this case renders the propriety of a new trial more apparent.
( b. ) The majority of the court differ from these views.
JACKSON, C. J., concurring, and stating the views of a majority of the court:
1. The fact of the lease could be proved without producing the writing. Nothing in the writing could prevent the liability of the actual carrier, holding itself out to the public as such, if it were negligent, whatever might be its effect as to ultimate liability between the parties thereto.
2. Suit having been brought for an injury which occurred at a railroad station, alleged to have been caused by the sudden jerking of the train while a passenger was in the act of landing, without giving her a reasonable opportunity to do so in safety, there was no error in charging to the effect that the liability of the carrier begins at the starting point, and does not end until the passenger lands in safety.
( a. ) The court did not charge or intimate that it was the duty of the conductor to help the woman injured in this case from the car.
3. There was no error in adding the qualification to the effect that the servants or agents of the company must not be a fault, though the conductor was not bound to help women from the cars.
4. The newly discovered evidence in this case being only cumulative and impeaching in its character, and the presiding judge having refused a new trial, this court will not grant a reversal.
5. Conflict of evidence is for the jury, and when they have settled it, and the presiding judge approves the finding, this court will not interfere.
Railroads. Damages. Negligence. Service. Waiver. Amendment. Allegata and Probata. Non-suit. Leases. Charge of Court. Newly Discovered Evidence. Before Judge RONEY. Richmond Superior Court. April Term, 1884.
This case is sufficiently reported in the opinions of Hall, Justice, and Jackson, Chief Justice.
A. R. LAWTON; J. C. C. BLACK, for plaintiff in error.
TWIGGS & VERDERY, for defendants.
The injury for which this suit was brought against the Central Railroad occurred in Richmond county, at a station on the Augusta and Savannah Railroad, called McBean; the writ in its original form was served on the agent of the Central Railroad at that station. The plaintiff amended her declaration by alleging that the latter road was held and operated under lease by the former. Before this amendment was made, the defendant pleaded to the merits of the suit. It filed no special plea denying its liability to suit for wrongs occurring by the running of the trains on the other road; neither did it take exception to the service of the writ upon its agent until the case was on trial, without giving the plaintiff any previous notice of either of these defences; at the hearing, it urged them both by objecting to the amendment and excepting to the service; in short, it alleged that it was never served with the writ.
1. That it had notice of the suit is conclusively shown by its appearing and pleading to the merits; it thereby waived the service, and was estopped from insisting that it had not been made. Code, §3335, and citations. No surprise was claimed on account of the amendment, and no continuance was asked because of the same; nor was any offer made to amend the defence and plead to the sufficiency of the service or of the declaration as amended. The fact that the service on the agent was not personal can make no material difference. The defendant had notice and responded to it. The object to be attained by it was to bring the defendant into court, and to afford it an opportunity to be heard, and it availed itself of this opportunity by appearing and pleading. That the service, independent of these considerations, was sufficient, will appear from Ga. Southern R. R. Co. vs. Bigelow, 68 Ga. 219 and The Central R. R. vs. Smith, 69, Id., 268, 272.
2. The amendment was properly allowed. It neither introduced a new party nor a new cause of action; it supplied what the plaintiff deemed defects and omissions in setting out her cause of complaint against the defendant in the declaration, as originally filed. It had this extent, and only this. Besides, under the circumstances, it may be somewhat doubtful if the amendment was necessary; unquestionably it was proper, because the pleadings were thereby made to conform to the facts in the case.
This disposes of the rulings excepted to in the 1st and 2d grounds of the motion for a new trial.
3. As the grounds of the motion following relate to the same subject, they will be considered together.
(3.) Because the court, after said plaintiff had announced that she closed her evidence, and defendant had moved for a non-suit, on the ground that there was no evidence that the defendant was the lessee of the Augusta and Savannah Railroad, allowed said plaintiff to re-open the case and call to the witness stand General A. R. Lawton, counsel of defendant, and prove by him that there was a lease of the Augusta and Savannah Railroad by defendant, the witness stating that said lease was in writing, and his testimony being objected to by defendant as inadmissible because the lease was in writing.
(4.) Because the court admitted the evidence of General A. R. Lawton, counsel of defendant, called to the witness stand by plaintiff, that there was a lease between the defendant and the Augusta and Savannah Railroad, it appearing from the testimony of said witness that said lease was in writing, and said evidence having been objected to on that ground.
(5.) Because the court, after the evidence of General A. R. Lawton, as above stated, and plaintiff had again announced that she closed the case, overruled a motion by defendant for non-suit, because the evidence did not authorize a recovery.
(7.) Because the court refused to charge the jury, as requested in writing by defendant's counsel, as follows, viz.: " It is incumbent on the plaintiff to show affirmatively, not only that there was a lease to the Central Railroad Company,...
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