Georgia Southern & F. Ry. Co. v. Thornton
| Decision Date | 18 December 1915 |
| Docket Number | 147. |
| Citation | 87 S.E. 388,144 Ga. 481 |
| Parties | GEORGIA SOUTHERN & F. RY. CO. v. THORNTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a suit was brought by a widow against a railroad company for the homicide of her husband, and one contention of the defendant was that the husband negligently sought to cross the railroad track almost directly in front of a moving train, it was not admissible for the defendant to introduce evidence to show that the decedent had been seen on other occasions to run across in front of a moving train at the same station. East Tennessee, etc., R. Co. v. Kane, 92 Ga. 187 (4), 191, 18 S.E. 18, 22 L.R.A. 315; Atlanta & West Point R. Co. v. Smith, 94 Ga. 107 (3), 110, 20 S.E 763; Atlanta Consolidated Street Ry. Co. v. Bates, 103 Ga. 333 (6), 336, 30 S.E. 41; Central of Georgia Ry Co. v. Ross, 107 Ga. 73 (1), 32 S.E. 904.
The charge to the effect that, whenever a railroad company is shown to have killed a person by the running or operation of its locomotive or cars, the presumption is that the company was negligent "in all the ways alleged according to law" in the declaration against it, and the burden is put upon the company to show that its agents and employés exercised all ordinary care and diligence, when taken in connection with the entire charge, was not erroneous.
There was no error in charging, in effect, that if the death of a man results from negligence on the part of another, the cause of action for his homicide is in his wife, if she survives him, and she has the right to sue for such negligent homicide of her husband, and "to recover the full value of his life, without deduction for necessary or other expenses had he lived."
(a) This charge was not subject to the criticism that it did not instruct the jury that the negligence complained of must be the negligence of the party sued. The charge was dealing with the question of the right of the widow to bring suit for the negligent homicide of her husband, and the extent of a recovery in such a suit, including the full value of the life of the deceased, as shown by the evidence, without deduction for necessary or other personal expenses of the deceased had he lived. In connection with the general charge, it could not have been understood by the jury as applying to the negligence of any person save that of the defendant.
(b) Neither was such charge subject to the criticism that it took away from the jury the consideration of comparative damages that is, that if the deceased and the agents of the company were both at fault, the plaintiff might recover, but the damages should be diminished by the jury in proportion to the amount of default attributable to the deceased. The rule of comparative damages was fully given in charge, and, taken together, there could have been no mistake as to the instructions of the court on the subject of damages.
Nor when considered in connection with the general charge, was there any error in charging: Elsewhere in the charge the presiding judge had instructed the jury that, if the plaintiff's husband was not upon the crossing and using it for the purpose of crossing the tracks of the defendant, he would, relatively to it, be a trespasser, and the defendant would owe him no duty except not to willfully and wantonly injure him after his presence became known to them. The charge as a whole showed that the excerpt first above referred to had reference to the degree of diligence required of the parties respectively, if the husband of the plaintiff was crossing the track at a public crossing when injured, as contended by the plaintiff, and the second instruction mentioned dealt with the contention of the defendant that the plaintiff's husband was not on the crossing when injured, but was a short distance therefrom and was a trespasser.
There was no error in charging as follows: "If you find that the plaintiff's deceased husband [naming him] and the railway company were both at fault, that is, both negligent, and yet if you find that [the husband's] negligence in any manner or thing which was the proximate cause of his death did not amount to a failure to exercise ordinary care and diligence for his own protection, and that he could not by the exercise of ordinary care and diligence have avoided the consequence of the defendant's negligence after the same was existing and known to him, or should have been known to him under the rules of law, which I have given you in charge, then the plaintiff may recover in this action, but the amount of recovery should be reduced by the amount of fault attributable to plaintiff's deceased husband [naming him]." This charge was not subject to the criticism that it included two distinct rules of law, which are embodied in Civil Code 1910, §§ 2781 and 4426, respectively, in such manner as to limit and modify each other. Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (8), 209, 58 S.E. 769; Southern Ry. Co. v. Nichols, 135 Ga. 11 (2), 13, 68 S.E. 789; Western & Atlantic R. Co. v. Davis, 139 Ga. 493 (2), 77 S.E. 576.
(a) Nor was there error for a like reason in the charge complained of in the eleventh ground of the motion for a new trial.
(b) It was not error for the presiding judge to omit to charge, in the absence of a timely request therefor, that if the negligence of the deceased was equal to or greater than that of the defendant, the plaintiff could not recover. Central Ry. Co. v. Gill, 136 Ga. 240 (2), 71 S.E. 166.
None of the other grounds of the motion for a new trial furnish cause for reversal, or require discussion in detail. The verdict was supported by the evidence, and there was no error in overruling the motion for a new trial.
Error...
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