Georgia R.R. & Banking Co. v. Fitzgerald

• Decision Date: 26 July 1899
• Parties: GEORGIA RAILROAD & BANKING CO. v. FITZGERALD.
• Court: Georgia Supreme Court

34 S.E. 316

108 Ga. 507

GEORGIA RAILROAD & BANKING CO. v. FITZGERALD.

Supreme Court of Georgia

July 26, 1899

Syllabus by the Court.

1. An admission by a person, tending to show that a physical injury received by him, and which subsequently resulted in his death, was caused by an accident, and not by the negligence of a railroad company of which he was an employé was admissible in evidence for the defendant on the trial of an action for the homicide of such person, brought by his widow against that company.

2. On the trial of an action against a railroad company for a homicide alleged to have been caused by the negligent "kicking" of a car, it was, in the absence of evidence showing that a "running switch" and a "kick" were the same thing, erroneous to admit in evidence against the defendant one of its rules, which related exclusively to running switches. The more especially is this true if it affirmatively appeared from the evidence that the two things were essentially different.

3. While some of the charges excepted to may not have been precisely accurate presentations of the law, the only errors of sufficient importance to warrant the granting of a new trial are those dealt with in the preceding notes.

Error from superior court, Walton county; C. G. Janes, Judge.

Action by Moselle Fitzgerald against the Georgia Railroad & Banking Company. Judgment for plaintiff, and defendant brings error. Reversed.

Jos. B. & Bryan Cumming and H. D. McDaniel, for plaintiff in error.

H. C Roney and W. S. Upshaw, for defendant in error.

FISH J.

1. This was an action brought by a widow to recover damages for the homicide of her husband, and employé of the railroad company who was killed while making an effort to couple cars. As has been expressly decided, her right to a recovery must necessarily depend upon a determination of the question whether or not "the husband, had he lived, would have had such right; and whatever would have been a good defense to his suit, had he lived, will be equally available against one brought by her." Berry v. Railroad Co., 72 Ga. 137. In other words, she is to be considered in privity with the husband, in so far as her right to complain of his homicide is concerned. It follows, necessarily, that the company should have been permitted to show, by any competent evidence at its command, that the injuries sustained by him were occasioned, not by the alleged acts of negligence on its part of which complaint was made, but by other and wholly different causes. Section 5181 of our Civil Code provides in terms that: "The declarations and entries of a person since deceased, against his interest, and not made with a view to pending litigation, are admissible in evidence in any case;" while section 5193 undertakes to state...