Georgia Ry. & Electric Co. v. Gilleland

• Decision Date: 23 December 1909
• Citation: 66 S.E. 944,133 Ga. 621
• Parties: GEORGIA RY. & ELECTRIC CO. v. GILLELAND.
• Court: Georgia Supreme Court

66 S.E. 944

133 Ga. 621

GEORGIA RY. & ELECTRIC CO. v. GILLELAND.

Supreme Court of Georgia

December 23, 1909

Syllabus by the Court.

Where suit was brought by a man for a personal injury, and after his death pending the action his administratrix was made a party, and on the trial it was shown that before the injury the decedent was a strong and vigorous man, and that after it he lost time from his work and at night was restless and did not sleep well, there was no error in permitting his wife to testify that "his restlessness and sleeplessness were indicated to her by his being restless and twisting around and he would get up sooner than usual," and that "I noticed when he got up he would place his hand on his hip and stand for a moment before he would start to walk off." Such evidence was not objectionable on the ground of it being hearsay.

After showing the injury, there was no error in permitting the physician who treated the injured person to testify: "In dressing his shoulder, you couldn't dress the shoulder without your moving the arm, and when you would move the arm he would complain of pain. That is about the only way I could tell it."

In an action to recover damages for a physical injury, it was competent for a witness who knew the injured person well, and who saw him frequently both before and after its occurrence to testify that: "He was more stupid after the injury than before. *** As to his appearance or his manner, I could hardly say except in a general way, except that he was more stupid after than before."

When the injured person was confined to his home for several weeks, and then returned to work, though there was some evidence to indicate that he continued to suffer, and where some months later he had a spell of sickness, and about a year thereafter he again became sick and died, it was not competent to prove the amount of the physician's bills incurred in the two spells of sickness, unless it were shown that they resulted from the injury.

It being contended that the motorman on a street car was negligent, in a suit by an injured passenger, where the motorman was introduced as a witness for the defendant, it was not proper, on cross-examination, to allow him to be asked, "Didn't you feel that the lives of the passengers were in a measure under your keeping?" and to admit his answer, "Certainly, I felt that their lives and safety were in my hands."

In a suit by a passenger against a street railway company on account of a personal injury, after a presumption of negligence arises from the evidence, in order to rebut it the defendant must make it appear from the evidence that its agents or servants exercised extraordinary care and diligence in connection with those things in which it was charged that its negligence consisted.

It was not an accurate statement of the doctrine of an emergency created by a carrier of passengers, placing a passenger in a perilous condition, on account of which he leaped from a car to charge: "If you believe that the plaintiff, at the time that he jumped from the car, was acting under a reasonable apprehension-- that is to say, the apprehension of a prudent man--that he was under circumstances that he might receive an injury, he would not be guilty of contributory negligence in jumping from the car."

Where a petition alleged that, a short distance beyond the point at which a passenger sprang from a moving street car and was injured, there was a curve in the track which was in bad condition or improperly constructed, and the only evidence on the subject was introduced by the plaintiff, and showed that the curve was not improperly constructed, in view of the fact that it was a part of a street car track in a city street and had to be adjusted to the surface of the highway, and negatived the allegation, and there was no evidence that the plaintiff's husband knew of any defect in or danger arising from the curve, if there had been any, so as to connect it with his leaping from the car, the court should not have given to the jury charges submitting to them whether the curve was improperly constructed, and was in bad condition, and whether the passenger knew of such fact.

Under Civ. Code 1895, § 2266, requiring carriers of passengers to exercise extraordinary diligence to protect the lives of passengers, the words "reasonable care and diligence," used in section 2321, declaring that a railroad company shall be liable for any damage done to persons by the running of locomotives, cars, etc., unless the railroad company shows that its agents have exercised all reasonable care and diligence, means extraordinary care and diligence.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by Samuel O. Gilleland against the Georgia Railway & Electric Company for injuries. On death of plaintiff pending the action, his administratrix was substituted. Judgment for plaintiff, and defendant brings error. Reversed.

Samuel O. Gilleland brought suit against the Georgia Railway & Electric Company, alleging substantially as follows: On October 28, 1905, at about 1 o'clock a. m., plaintiff boarded an electric car of the defendant in the city of Atlanta. The route along which it was intended to pass extended eastward along Hunter street, thence turned southward along Hill street to Woodward avenue, into which it turned. Plaintiff was a passenger on the car, and with the permission and consent of the motorman and conductor, the car being well filled, he was riding on the front platform. When the car reached the sharp curve of the defendant's track at the corner of Hill street and Woodward avenue, the motorman, instead of decreasing the speed, negligently continued the high rate of 10 or 15 miles per hour, and the car struck the curve with great force, was derailed, and proceeded for a considerable distance after leaving the rails. It was jolting with great force, and appeared to be about to turn over. The plaintiff, seeing the derailment, and that the electricity was flashing up all around the car, started toward the step of the platform, holding on with both hands. As he reached the step the movement of the car, together with the fact that the motorman ran violently against him, caused him to be thrown to the ground and seriously and permanently injured.

The plaintiff died pending the action, and his administratrix was made a party in his stead. She amended the petition by alleging, in substance, as follows: After the car crossed Fair street, which was the next cross street before reaching Woodward avenue, the motorman suddenly and negligently turned on the motive power of the car, and the full current of electricity of a high voltage passed through the controller. This caused the car to start forward at a very rapid rate of speed, and, on account of the condition of the controller and the high voltage of the current in the trolley wire, caused the controller to "blow up," the current to "arc" and to flare and blaze up in and around the controller stand, setting fire to the insulation and to inflammable material in and about the controller, near to which the plaintiff's husband was standing, thus imperiling his life and safety. The motorman negligently failed to cut off the current by reversing his controller, as he could easily have done, or by means of the overhead switch, which was easily within his reach and was provided for the purpose of disconnecting the current in an emergency. He also failed to apply the brake, in order to check and arrest the speed of the car. He abandoned his post of duty, jumped from the car, and left it uncontrolled. After this the car was running at full speed, and immediately in front of it was a downgrade 100 feet in length, extending to the curve on Woodward avenue. Plaintiff's husband was in imminent peril of his life from a wreck, or from the running off and overturning of the car. In the exercise of ordinary care and diligence in regard to his own safety, he jumped from the car at a point about 100 feet from the curve. While he was in peril in the manner stated, the conductor abandoned his post of duty in the rear of the car and negligently failed to disconnect the current by means of the overhead switch, which was easily within his reach. He also failed to apply the brakes or to remove the trolley from the wire, which he could easily have done, and thus disconnected the current from the car. The defendant negligently maintained a controller which was in bad order, the metal parts which conduct the current being loosened by wear and insecure fastening, and being bent out of position, on account of which the current running through the controller formed a short circuit and "arcked," causing the controller to be burned out and the electricity to blaze up. The defendant maintained its track on the curve in a dangerous condition, the outer rail being 2 1/2 inches lower than the inner one, while it should have been higher. This condition increased the peril of the plaintiff's husband and the probability of a derailment and wreck of the car as it approached the curve.

The jury found for the plaintiff $1,500. Defendant moved for a new trial, which was denied, and it excepted.

Rosser & Brandon and Colquitt & Conyers, for plaintiff in error.

Jas. L. Key, for defendant in error.

LUMPKIN J.

1. Evidence was introduced tending to show that prior to the injury the husband of the plaintiff was a strong and vigorous man, and that after the injury he lost time from his work and at night was restless and did not sleep well. His wife, as a witness, was allowed to testify that "his restlessness and sleeplessness were indicated to her by his being restless and twisting around, and he would get up sooner than usual. *** I noticed when he got up he...