East Tenn. v. & G. Ry. Co

Decision Date10 November 1891
Citation88 Ga. 60,13 S.E. 855
CourtGeorgia Supreme Court
PartiesEast Tennessee, V . & G. RY. Co. v. Markens.

Railroad Companies — Accident at Crossing— Carriers —Imputable Negligence.

1. Where there is no evidence that a passenger in a public hack knew of danger from an approaching train on a public crossing, the judge may so state to the jury, and may say that there is no evidence of any failure in duty on the part of such passenger to avoid the injury.

2. In the case of a female passenger in a public hack, a charge to the jury as follows was correct: "I do charge you that the negligence of the driver, if he was negligent, is not imputable in law to her. A person who hires a public hack, and gives the driver directions as to the place where he wishes to be conveyed, but exercises no other control over the conduct of the driver, Is not responsible for his acts of negligence, or prevented from recovering against the railroad company for injuries suffered from a collision of its train with the hack, if the same was caused by the concurring negligence of both the manager of the train and the driver of the hack. The only negligence on the part of the driver which will defeat or otherwise affect the right of Mrs. Markens to recover is embodied in the following proposition: If the negligence of the driver was the sole cause and the real cause of the collision, she cannot recover. If the driver and the manager of the train were guilty of negligence, both concurring to bring the collision about, such negligence on the part of the driver cannot have the effect either to defeat or diminish the plaintiff's right to recover."

3. A female passenger in a public hack is under no duty to supervise the driver at a public crossing, nor to look or listen for approaching trains, unless she has some reason to distrust the diligence of the driver himself in respect to these matters.

4. The statute requiring the checking of trains and ringing of bells in approaching public crossings is applicable to this case, without reference to the distance from the crossing to the point at which the train started.

5. Though the court committed some slight errors in ruling upon the minor points of the case as set out in the motion for a new trial, there w;is no error in refusing a new trial upon any of the grounds stated in the motion.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by one Markens against the East Tennessee. Virginia & Georgia Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

Borsey, Brewster & Howell, for plaintiff in error.

Mr. Hoke and Burtoa Smith, for defendant in error.

Lumpkin, J. 1. While a judge is forbidden to express or intimate his opinion concerning a question of fact about which there is any doubt whatever, he may with propriety say to the jury that there is no evidence to support an aliened fact, when such statement is unquestionably true. The object of section 3248 of the Code is to prevent judges from interfering with the functions of juries in determining confuted issues of fact when there is proof on both sides; but when an alleged fact is entirely unsupported by evidence the judge may aid the jury by so informing them, thus relieving them of that much difficulty in reaching a correct conclusion in the case.

2 and 3. Whatever the law formerly may have been, it is now well settled that the propositions contained in the charge of the court below quoted in the second head-note are correct and sound. So well are we convinced of this, we deem an elaborate discussion of the questions involved unnecessary. In the American & English Encyclopedia of Law (volume 4, p. 83) we find the following: "It is now the rule in the United States courts, in England, and in most of the states of the United States, that the contributory negligence of a carrier is not attributable to a passenger." In volume 16, p. 447, of the same work, it is stated that "there can be no such thing as imputable negligence, except in cases where that privity which exists in law between master and servant and principal and agent is found.

In order for the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such a relation of privity to the negligent person that the maxim qui facit per alium tacit per se is directly applicable. It follows that all the cases in which the negligence of one person has been imputed to another in the absence of just this relation of privity are wrongly decided, and such is the effect of overwhelming recent cases." See, also, Flaherty v. Railway Co., (Minn.) 40 N. W. Rep. 160; Becke v. Railway Co., 102 Mo. 544, 13 S. W. Rep. 1053; Little v. Hackett,...

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13 cases
  • Gunn v. Ohio River R. Co.
    • United States
    • West Virginia Supreme Court
    • December 9, 1896
  • Wallace v. Mize
    • United States
    • Georgia Supreme Court
    • May 12, 1922
  • Wallace v. Mize
    • United States
    • Georgia Supreme Court
    • May 12, 1922
    ... ... 260 (5), 48 ... S.E. 972. Where a fact is undisputed, the court may so tell ... the jury, and such instruction would not be erroneous ... East. Tenn., Va. & Ga. Ry. Co. v. Markens, 88 Ga ... 60, 62, 13 S.E. 855, 14 L.R.A. 281; Southern Ry. Co. v ... Chitwood, 119 Ga. 28, 45 S.E. 706; ... ...
  • Stroud v. Willingham
    • United States
    • Georgia Court of Appeals
    • April 27, 1972
    ...to the defendant, relying upon Code section 105-205 and the cases from which the Code section was codified. East Tenn., Va. & Ga. Rwy Co. v. Markens, 88 Ga. 60, 62, 13 S.E. 855 and Atlanta & Charlotte Air-Line Rwy Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, and particularly the latter, on page......
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