City & Suburban Ry. v. Findley

• Decision Date: 06 April 1886
• Citation: 76 Ga. 311
• Parties: THE CITY AND SUBURBAN RAILWAY v. FINDLEY.
• Court: Georgia Supreme Court

76 Ga. 311

THE CITY AND SUBURBAN RAILWAY v. FINDLEY.

Supreme Court of Georgia.

April 6, 1886

March Term, 1886.

1. A carrier of passengers, whether by street cars drawn by horses through the streets of a city, or by cars propelled by steam from city to city, is bound to use extraordinary diligence and where one is hurt by reason of its carriage, the presumption is always against the carrier. Therefore, where a passenger was hurt in leaving a street car, and his testimony showed that the car started before he completely left it, and there being no conductor, the driver testified that he did not know that the passenger was hurt at all, but that his habit was to stop till all his passengers got off, and that he did so that night, and another witness testified to hearing the exclamation of the passenger to the effect that he was hurt, and on going to him, found him injured where he had attempted to alight, even more than slight neglect was shown; and a verdict against the street car company was supported by the evidence.

2. Newly discovered evidence, the object of which is to impeach the plaintiff as a witness, and which is itself overwhelmingly disproved by many counter-affidavits, does not require a new trial.

3. It is the right and duty of the presiding judge to state to the jury the several contentions between the parties, the only restriction being that he shall state them fairly to each side. He may also sum up the evidence, with a view to the better stating of those contentions practically so as to be readily comprehended by the jury, being careful to withhold any expression or intimation of opinion as to its truth.

( a. ) The issues in this case, considered as a whole were fairly submitted to the jury.

4. While the expression, " all actions of this sort necessarily imply fault somewhere," when taken alone might be objectionable, as excluding the idea of a mere accident, and would be so if there were any testimony at all that the injury was a mere accident, yet, in connection with its context in this case, it did no harm. The judge, in effect, charged the existence of the presumption of fault against the carrier, and how that presumption could be rebutted by showing fault in the injured person.

5. The charge in respect to the damages which might be recovered was not error, being to the effect that they should not be punitive or vindictive, but such as the jury might believe would compensate the plaintiff for his expense and suffering physical and mental, for his present condition and decreased capacity to earn a living; that the law permits nobody else to measure damages but them; and that if, by reason of the negligence of the company, the plaintiff was hurt, such damages should be given.

Railroads. Damages. Negligence. Carriers. Street Railroads. Evidence. Charge of Court. Presumptions. Before Judge HARDEN. City Court of Savannah. July Term, 1885.

To the report contained in the decision, it is necessary to add only the following: The plaintiff testified that, at the point of his destination, the bell was rung by some other passenger and the car stopped; that several passengers got off, the plaintiff being about the last; that he placed one foot on the ground, the other being on the step, when the car started and threw him to the ground, breaking his leg at the thigh and permanently injuring him; that the car had no conductor and that the injury occurred about eight o'clock in the evening. " As I stepped in this position, I had hold of the hand-railing, intending to step straight off and put my left foot on the ground at a place where there was a little rising of ground nearly level with the step. As I stepped off, I either let go this railing or turned the wrong way. If I had known the car was going to start, I might have saved myself falling."

The other testimony is sufficiently stated in the decision.

The jury found for the plaintiff $1,500. The defendant moved for a new trial on the following grounds:

(1)-(3.) Because the verdict is contrary to law and evidence.

(4.) Because the defendant has discovered evidence since the trial of the case not known to its officers or attorneys before the trial, not for want of due diligence. [The evidence was contained in the affidavit of Benjamin S. Heape, attached to the motion for new trial, to the effect that the plaintiff had stated, previously to the bringing of the suit, that the injury of which he complained was caused by a fall from a horse.]

(5.) Because the verdict is excessive.

(6.) Because the court erred in charging the jury as follows: " His (plaintiff's) theory of his case, that which he endeavors to establish before you, is that, on the fourth of December (Tuesday), 1883, between 7 and 8 o'clock, somewhere between 7 and 8 o'clock in the afternoon, on the corner of the junction of Abercorn and Broughton streets, he entered the street car, run by the City and Suburban Railway Company, on the line of Abercorn and Anderson streets; that the car was of that class of cars which are called non-conductors, having a driver, who was in general charge of the car, to collect fare, and a box into which fares were to be put; that is, the fares were to be placed in the box; that he was going to see the exhibition, which was located on south side of Anderson street, and that there were a number of other passengers on the car, and that when the car reached the place in the city where the exhibition was, it stopped and the passengers dismounted; that he was the last, or about the last, to dismount, and that he started out of the car, the car being stationary; that he stepped out, with the left foot, on the left side of the car, stepping off the way the car was heading, and as he placed the left foot on the ground, and before he could move the right foot from the steps, the car started forward, and in so doing, threw him to the ground, dislocating and breaking his hip and causing him injury, from which, he alleges, it is impossible for him to recover, and one which has done him very grievous injury. That is his theory of the case; whether he sustained it by fact or evidence or not, is for you to say."

(7.) Because the court charged the jury as follows: ‘ The defendant company answers and says: ‘ You have been injured, as it appears; we don't deny that, but we do deny that you have been injured by our fault. You are yourself to blame for the way in which you have been injured, because we have a car of a good and safe style of car, one that is habitually used and is as safe as any other car of its class. The car was in good order, and had a step for you to get off. The conductor examined and saw everybody off the car, yourself included, and then he started forward; and if you fell at that time and place, it was your own fault and not the conductor's'. That is the theory of the defendant; or else, ‘ If you had not gotten entirely off the car, you got off the car after it started, and getting off the car while it was in motion was carelessness on your part, and in that way you were responsible; or if it was not done in that way, there is no way in which it could be done, because, except by some accident, it is impossible to have caused that fall; the said company was in the exercise of all ordinary care and prudence in the protection of its passengers and in the management of its road.’ Now then, whether that is true or not is a question for you to determine from the evidence. That is a fair statement of the two sides of the case.

(8.) Because the court charged as follows: " All actions of this sort necessarily imply fault somewhere."

(9.) Because the court charged as follows: " You are to pay him what you would consider damages that would compensate him. Not vindictive or punitive damages; nothing to punish the company, or be a warning to them, but such damages as will, in your opinion, compensate him for the expense and suffering undergone, physical and mental, for his present condition, for his decreased capacity to earn a living. In other words, such damages as, in your opinion, will compensate him for the injury received."

(10.) Because the court...