Ga. Midland & G. R. Co v. Evans

Decision Date20 July 1891
Citation13 S.E. 580,87 Ga. 673
CourtGeorgia Supreme Court
PartiesGeorgia Midland & G. R. Co. v. Evans.

Railroad Companies—Negligence — Pleading— Evidence—New Trial.

1. Under our Code, negligence of a railroad company being presumed when injury by the running of its train is shown, it is not necessary for a father, suing for loss of the services of his minor son, not an employe of the company; who was killed on a public crossing, to allege m his declaration either that he or the son was in the exercise of due care or was without fault.

2. Ordinary care for his own safety is not necessarily the measure of diligence incumbent upon a child under 14 years of age; nor is such child bound, as matter of law, to anticipate negligence by others. The evidence showing that the boy in question was under 14 years of age, a request to charge the jury, which assumed him to be of the age of 14, was properly declined.

3. A locomotive engineer is not entitled to assume in all cases that persons on a public crossing will get off in time to save themselves. In running a train at a public crossing in a city he is bound to observe reasonable diligence, before he discovers peril as well as afterwards; and the company is responsible for his negligent errors of judgment.

4. A request to charge in terms not applicable to the facts in evidence, or which in laying down a proposition omits some of the material elements to be considered, is properly refused.

o. The deceased not having been killed while jumping on or off cars, his previous habit of doing so at the public crossing where he was killed is not relevant evidence.

6. It is improper for counsel, on a motion to reopen the case for more evidence, made while the argument is in progress, to give the names of witnesses, and state what their evidence would be, without first requesting the court to cause the jury to retire. But the impropriety will not necessarily work a new trial, it not appearing that counsel acted in bad faith, or with any purpose to get facts before the jury by artful practice.

7. The evidence warranted the verdict, and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from superior court, Spalding county; James S. Boynton, Judge.

Action by A. M. H. Evans against the Georgia Midland & Gulf Railroad Company for the negligent killing of a minor son. Judgment for plaintiff. Defendant brings error. Affirmed.

Goetcbius & Chappell, for plaintiff in error.

J. B. Stewart and E. W. Hammond, for defendant in error.

Lumpkin, J. 1. Where a father sues a railroad company for loss of services of his son, alleged to have been occasioned by the negligent killing of the latter by the company, the declaration not affirmatively disclosing any negligence or want of care on the part of either the father or deceased, it is not necessary for the plaintiff to allege that he had exercised ordinary care and dilgence to avoid the injury to his son. Nor is it necessary, where the declaration alleges that the son was killed by the negligence of the railroad company, and specifies the negligent acts complained of, to further allege that deceased himelf exercised all ordinary care and diligence to prevent the injury, and that the homicide was without fault on his part. If the deceased was in fault, or could by the exercise of reasonable care have avoided the injury, these were matters of defense. Deer. Neg. § 400; 3 Lawson. Rights, Rem & Pr. § 1216; Pierce, R. R. 322. The foregoing authorities sustain the above rulings, though they show also that, if the declaration itself alleges facts from which consent to the injury, negligence on the part of the person injured, or failure on his part to exercise due care to avoid the consequences of defendant's negligence may be inferred, then the declaration must go further, and avoid or explain such facts, and make defendant's liability appear notwithstanding the same. The presumption under our Code being against the railroad, if injury and negligence by defendant are clearly set forth, the...

To continue reading

Request your trial
11 cases
  • Alabama & Alabama & Vicksburg Railway Co. v. Thornhill
    • United States
    • Mississippi Supreme Court
    • December 22, 1913
    ... ... v. N. Y., etc., 65 N.Y.S. 1044; Hubbard v. Town of ... Mason, 60 Iowa 400; Georgia, etc., v. Evans, 87 ... Ga. 673; Glass v. Memphis, 94 Ala. 581; Eaton v ... Telegraph Co., 68 Me. 63-67; Chaise v. Maine, ... 77 Me. 62; Barrows v ... ...
  • Allman v. Gulf & S. I. R. Co.
    • United States
    • Mississippi Supreme Court
    • February 20, 1928
    ...of the appellants in this case, are the following: Totarella v. etc., 65 N.Y.S. 1044; Hubbard v. Town of Mason, 60 Iowa 400; Georgia, etc., v. Evans, 87 Ga. 673; Glass Memphis, 94 Ala. 581; Eaton v. Telegraph Co., 68 Me. 62; Chaise v. Maine, 77 Me. 62; Barrows v. Triever, 21 Md. 320; Aiken ......
  • Rome Ry. & Light Co v. Keel
    • United States
    • Georgia Court of Appeals
    • February 24, 1908
    ...the plaintiff was without fault good. Jarrell v. American Pipe Bending Co., 2 Ga. App. 764 (14), 59 S. EL 188; Georgia Midland R. Co. v. Evans, 87 Ga. 673, 675, 13 S. E. 580. The demurrer to the paragraph alleging that the plaintiff's earning capacity would increase is not well taken. Centr......
  • Stewart v. Mynatt
    • United States
    • Georgia Supreme Court
    • February 14, 1911
    ... ... Whether or not by the exercise of ... ordinary care the plaintiff could have prevented the injuries ... was a matter of defense. Georgia Midland, etc., R. Co. v ... Evans, 87 Ga. 673 (1), 13 S.E. 580, and authorities ... cited; City Council of Augusta v. Hudson, 88 Ga. 599 ... (3), 15 S.E ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT