Flanders v. Meath

• Decision Date: 31 January 1859
• Citation: 27 Ga. 358
• Parties: David Flanders, plaintiff in error. vs. Mary Meath, by her next friend, defendant in error.
• Court: Georgia Supreme Court

27 Ga. 358

David Flanders, plaintiff in error. vs. Mary Meath, by her next friend, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1859.

Case, from Bibb county. Tried before Judge Lamar, June, 1858.

This was an action on the case by Mary Meath, by her next friend, Darby Meath, against David Flanders, to re-cover damages for injuries received by plaintiff from the dray of defendant, in the streets of Macon; said dray, at the time, being driven by a negro belonging to and in the employment of defendant. The damages were laid at five thousand dollars.

The defendant pleaded the general issue.

The following was the evidence, in substance, offered on the trial.

Plaintiff herself was presented to the view of the jury, and the injuries upon her head exhibited.

William Dillard swore, that he was standing on the sidewalk, near the house of Darby Meath, the father of plaintiff. Plaintiff started to run across the street when a dray, drawn by two mules, and driven by a negro man, was coming down the street at a very rapid rate; the mules, dray and driver were reputed to belong to the defendant-have seen him control them; the mules were the fastest pair about the city, and were going at their best speed, in a trot. The plaintiff ran about 49 feet, and just cleared the heads of the mules, and was caught in the hind wheel of the dray, which ran over her body and head; the driver rather struck his mules with the lines the moment after plaintiff was run over, and went on to the bridge, some 120 to 150 yards, before making any halt. "Witness picked plaintiff up, and found her head badly lacerated and cut from the top over her face, down to the lower part of her cheek; the whole side of her face and ear appeared to be loose, and torn from the skull.

Cross-examined: Plaintiff is a very wild and awkward child, in the habit of running in the streets — have seen her run in front of vehicles just as they were passing, and came near being run over—have told her parents that she would some day get hurt, if they did not keep her out of the street; told them of her running in front of passing vehicles. There was a school just opposite the house of Mr. Meath, to which plaintiff was going; the driver was in thehabit of passing that street every day; the children in the neighborhood were in the habit of playing in that street, in front of the schoolhouse. There was a rain coming up at the time; it was raining in sight; there was a sack of flour and a sack of meal on the dray at the time. After running over the plaintiff, the driver did not look around, but kept on until he reached the bridge, before slackening his pace; the negroes on the dray were in the habit of driving unusually fast, and were frequently dancing and singing on the dray, as it was in motion.

Dominick Garaughty, sworn, testified that he saw plaintiff soon after the injury; she was badly hurt; her head was badly cut, from the top to the lower part of her cheek; the physician was then dressing the wounds; she was also much injured on her thighs; since the injury, she has not been as she was before; she has become more stupid and self-willed, and her parents can not exercise authority over her; she will never, in witness's opinion, be as she was before; saw the place where the injury was done; there was a hole like a hen's-nest, made by plaintiff's head, in the ground, have known plaintiff from her cradle; she was a bright child, but willful and uncontrollable; she was wild before, but is wilder still.

Cross-examined: The children in the neighborhood were in the habit of playing in the street, and witness has seen plaintiff running about the street, when vehicles were passing, and her parents knew it.

Re-examined: Has known plaintiff to suffer, and cry out, in agony, complaining of pain in her ear and head, since the wounds have healed. When witness first saw her. after she was injured, her ear was loose and almost severed from her head.

Here plaintiff closed, and defendant introduced no evidence.

When the plaintiff was exhibited to the Court and jury, there appeared a large rough scar, from the crown of herhead, down near the lower part of the right check, from a half to three-quarters of an inch wide.

The jury found for the plaintiff fifty dollars, whereupon plaintiff moved for a new trial, on the following grounds?

1st. Because the damages found by the verdict are inadquate to the injuries sustained.

2d. Because the verdict is against the evidence, and against the weight of evidence.

3d. Because the verdict is against...