East Tennessee, V. & G.R.R. v. Maloy

• Decision Date: 26 February 1887
• Citation: 2 S.E. 941,77 Ga. 237
• Parties: EAST TENNESSEE, V. & G. R. R. v. MALOY.
• Court: Georgia Supreme Court

2 S.E. 941

77 Ga. 237

EAST TENNESSEE, V. & G. R. R. v. MALOY.

Supreme Court of Georgia

February 26, 1887

Error to superior court, Dodge county.

Roberts & Smith, for plaintiff in error.

Delacey & Bishop, (by brief,) for defendant.

BLANDFORD, J.

This was an action brought by the plaintiff against the defendant for damages which she alleged she sustained by reason of the defendant company having, by the carelessness of its servants and agents, killed a minor son of hers. A verdict was rendered for the plaintiff, and a motion made for a new trial; and, upon its denial, exception was taken and error assigned as follows:

(1) "Because the court erred in admitting the testimony of F. S. King, to the effect that William Burke, the conductor of the train, who was on the engine at the time of the accident, told witness, in reply to the question of how it happened, that Mr. Norris, the engineer, told him he had pulled back the reverse lever of the engine, and it flew back, giving the train a jerk which jerked young Maloy off from the back of the tender of the engine, and the cars ran over him."

1. We think this was error. It was a statement made shortly after the accident, by the conductor to the witness, of what he heard the engineer state. This is mere hearsay testimony, and for that reason was inadmissible.

(2) "Because the court erred in admitting the testimony of Dr. Herman that, prior to his death, young Maloy said that the train had stopped to take on water at the tank below Eastman, and the engine suddenly backed the train, and jerked him off between the cars, when he was run over."

2. We think this evidence was inadmissible. The statement was not made at or near the time of the accident, so as to be admissible as a part of the resgestæ, but from aught that appears in the record it may have been made long afterwards, and it is of itself mere hearsay. It cannot be admitted on the principle of dying declarations, although the party died shortly afterwards; no such declarations being admissible in a civil case, but in criminal cases only.

In the fourth ground of the motion for new trial complaint is made that the testimony of Dr. C. T. Latimer and F. S. King was admitted by the court to the same effect; and we think it was inadmissible for the reasons already stated.

(3) Error is further complained of because the court charged the jury that if Mrs. Maloy was living separate from her husband John Maloy, and was using the wages of her son Thomas Alexander Maloy for the support of herself and her other minor children, she was entitled to recover, subject to the modifications given hereafter.

3. We see no error in this charge of the court. The action is not only in the name of the mother of the deceased, who was a minor, but in the name of the father, for her use, and she could well maintain the action under these circumstances.

(4) The next assignment of error is that the court erred in charging the jury that "the liability of a railroad company to an employe was the same as to a passenger for injuries inflicted by the negligence of co-employes;" charging, in the same connection, that "railroad companies are common carriers, and liable as such. As such companies necessarily have many employes who cannot possibly control those who should...