Godwin v. Atl. Coast Line R. Co
| Decision Date | 14 July 1904 |
| Citation | 120 Ga. 747,48 S.E. 139 |
| Parties | GODWIN v. ATLANTIC COAST LINE R. CO. |
| Court | Georgia Supreme Court |
DEATH BY WRONGFUL ACT — NUISANCE—ACCUMULATION OF STAGNANT WATER—MALARIA— PROXIMATE CAUSE — EVIDENCE—CROSS-EXAMINATION—INSTRUCTIONS.
1. As against the defendant, it was incompetent to prove that the witnesses regarded the pool as a nuisance, and had contributed to a fund to secure its abatement.
2. There were no contradictory statements, and nothing in the previous testimony of the witnesses which authorized an inquiry on cross-examination as to their contribution to such fund.
3. There was nothing in the pleadings requiring the judge to charge as to intervening or preponderating causes, and no request for an instruction on that subject.
4. The charge that the nuisance referred to in the declaration must be the "immediate and proximate cause" of the death of the plaintiff's husband, before she could recover, was not error; it being apparent that the word "immediate" was not used in the sense of "speedy, " but rather in contradistinction to "remote, " and as a synonym for "proximate."
5. The use of the word "disease, " instead of "malaria, " in the charge of the court, was not error, and not calculated to harm the plaintiff, but was in conformity with the allegations of the petition.
6. The failure of the court to charge on the subject of expert testimony was no cause for a new trial, there having been no request for a charge on that subject.
7. The charge fully and fairly submitted all the issues presented, the evidence was sufficient to sustain the finding, and the court did not err in refusing a new trial.
(Syllabus by the Court.)
Error from City Court of Valdosta; W. H. Griffin, Judge.
Action by Mrs. Elizabeth Godwin against the Atlantic Coast Line Railroad Company. There was judgment for defendant, and plaintiff brings error. Affirmed.
Mrs. Elizabeth Godwin brought suit against the Atlantic Coast Line Railroad Company for the death of her husband. The petition alleged that before the merger the defendant's predecessor had dug a trench or pool near the residence of the deceased; that filthy water drained into this pool, and became stagnant, polluted, and poisonous, sending forth noxious and offensive odors, vapors, and smells, impregnating the atmosphere, which the deceased and others at his home were compelled to breathe, and that this poisonous, unhealthy, and offensive matter often made it impossible to remain in the house; that the excavation likewise generated malaria and marsh gas, which, with the odors and vapors, invaded the home of her husband, from and by which he was stricken with disease, resulting in his death in September. 1902, after having lingered with disease, with the foregoing as the direct cause thereof, for more than a year, until it produced his death. The evidence established the allegations as to the existence and maintenance of the pool, and the fact that the offensive odors and vapors would be carried thence into the house of the deceased. There was testimony of a physician for the plaintiff that Mr. Godwin died with malarial fever, and that malaria could have been produced by the pond referred to in the petition. One witness testified that, as this pool was nearer the house, it was more natural to conclude that the malaria was caused by it than by causes more distant. On the cross-examination of the witnesses for the plaintiff, and by testimony for the defendant, it was shown that during the period of Mr. Godwin's sickness, throughout the city, and at points remote from this pool, there were many cases of similar illness; that there were other sources near his place of business and his residence, similar to the pool, by which malaria might have been caused; that the pool was 250 feet on one side of Mr. Godwin's house, and that 400 feet from it, on the other side, there was an excavation into which certain refuse matter was dumped; that this was likewise very offensive; that Mr. Godwin had been a member of the city council, and during his sickness sent for some of the city officials, and stated that he regretted having voted to have this place filled, asked that disinfectants be placed therein, and stated that he believed that it was the cause of his illness. There was much testimony as to the cause of malaria—whether it was transmitted by air currents, through water, or by mosquitoes; all of the witnesses testifying, however, that there were various theories as to its cause, but that it was impossible to say exactly how or by what it was produced, and as to whether it may not have been contracted from the same sources which occasioned similar diseases to persons residing in every part of the city of Valdosta during that year. The verdict was for the defendant. The plaintiff moved for a new trial, and assigned as error the...
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Scudiere v. State
...of expert testimony is not grounds for a new trial. Cameron v. State, 111 Ga.App. 691, 692, 143 S.E.2d 189; Godwin v. Atlantic Coast Line RR. Co., 120 Ga. 747(6), 48 S.E. 139. 3. As his third claimed error, Scudiere enumerates the trial court's failure without a request to charge on the sub......
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Thomas v. State
... ... State, 141 Ga. 98, 80 S.E. 649 ... In ... Godwin v. Atlantic Coast Line R. Co., 120 Ga. 747, 48 ... S.E. 139, it was held: ... ...
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Nationwide Mut. Fire Ins. Co. v. Rhee
...Code Ann. § 70-207(b); Travelers Indemnity Co. v. Cumbie, 128 Ga.App. 723(5), 197 S.E.2d 783 (1973). Accord, Godwin v. Atlantic C. L. R. Co., 120 Ga. 747(6), 48 S.E. 139 (1904); Scudiere v. State, 130 Ga.App. 477(2), 203 S.E.2d 581 (1973); Kirby v. State, 145 Ga.App. 813(1), 245 S.E.2d 43 8......
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Lyle v. State, s. 48782
...request, the failure of the trial judge to charge on the subject of expert testimony is no cause for a new trial. Godwin v. Atlantic C.L.R. Co., 120 Ga. 747(6), 48 S.E. 139; Cameron v. State, 111 Ga.App. 691(6), 143 S.E.2d For the foregoing reasons the trial judge did not err in overruling ......