Georgia Ry. & Power Co. v. Shaw

• Decision Date: 08 April 1920
• Docket Number: 11207.
• Citation: 102 S.E. 904,25 Ga.App. 146
• Parties: GEORGIA RY. & POWER CO. v. SHAW ET AL.
• Court: Georgia Court of Appeals

102 S.E. 904

25 Ga.App. 146

GEORGIA RY. & POWER CO. v. SHAW ET AL.

No. 11207.

Court of Appeals of Georgia, Second Division

April 8, 1920

Syllabus by the Court.

In a suit by the husband and children against a street railway company to recover for the death of a wife and mother alleged to have been caused by a collision between one of the defendant's street cars and a jitney bus in which the deceased was riding, it was error to charge the jury that "it is the duty of a motorman of a street railway car in propelling a car through the public streets, to notice the presence of pedestrians, and at all times be watchful to see that the way is clear; and, where he has reason to apprehend danger, or should in the exercise of ordinary care be cognizant of danger, he should regulate the speed of his car so that it could be quickly stopped should the occasion require." Such a charge was tantamount to instructing the jury that the facts recited were sufficient to render the defendant negligent (West End & Atlanta Street Railway Co. v. Mozely, 79 Ga. 463, 4 S.E. 324(1); Richmond & D. R. Co. v. Howard, 79 Ga. 44, 53, 3 S.E. 426), for to charge that it was the duty of a person to do a specific thing was equivalent to an instruction that the omission to do that thing would be negligence. Macon Ry. & Light Co v. Barnes, 121 Ga. 443, 446, 49 S.E. 282. Whether or not the defendant was negligent was a question for determination by the jury. See, also, Alabama, etc., Railroad Co. v Brown, 138 Ga. 328, 75 S.E. 330 (3) and Macon, etc., Ry. Co. v. Holmes, 103 Ga. 655, 30 S.E. 563 (3).

(a) The fact that the charge complained of was in the exact language used by the Supreme Court in Perry v. Macon Con. St. R. Co., 101 Ga. 410, 29 S.E. 304, is insufficient to alter our ruling, since there are many things said by the Supreme Court and this court that are sound law, but which nevertheless would be grossly improper instructions to a jury. See Savannah Ry. Co. v. Evans, 115 Ga. 318, 41 S.E. 631, 90 Am.St.Rep. 116; Merritt v. State, 107 Ga. 679, 680, 34 S.E. 361; Florida, C. & P. R. Co. v. Lucas, 110 Ga. 127, 128, 35 S.E. 283; Hudson v. Hudson, 90 Ga. 582, 16 S.E. 349 (3).

The court did not err in refusing to permit counsel for the defendant to elicit from a witness an answer to the question, "You had a lawsuit about this too, didn't you?" While it is generally competent to show by proper evidence the present interest of a witness in a case on trial, or its results, the inquiry as to interest must relate to the time when the testimony is given, and should be confined to the case on trial. Even if this evidence was competent, its rejection would not work a new trial (Van Winkle v. Wilkins, 81 Ga. 94, 7 S.E. 644 [9] 12 Am.St.Rep. 299), since it was not of such a character as would probably have materially affected the finding of the jury. Daughtry v. Savannah & Statesboro Ry. Co., 1 Ga.App. 393, 58 S.E. 230 (2).

In estimating the value of domestic service rendered by a wife and mother, the jury are authorized to take into consideration what may be the value of many services incapable of exact proof, but measured in the light of their own observation and experience. "There need be no direct or express evidence of the value of the wife's services either by the day, week, month, or any other period of time, or of any aggregate sum." Metropolitan St. R. Co. v. Johnson, 91 Ga. 466, 471, 472, 18 S.E. 816, 817. See, also, Standard Oil Co. v. Reagan, 15 Ga.App. 600, 84 S.E. 69 (3...