Holland v. Sparks

• Decision Date: 08 January 1894
• Citation: 18 S.E. 990,92 Ga. 753
• Parties: HOLLAND v. SPARKS.
• Court: Georgia Supreme Court

18 S.E. 990

92 Ga. 753

HOLLAND v. SPARKS.

Supreme Court of Georgia

January 8, 1894

Syllabus by the Court.

1. Negligence relatively to the safety of any particular person is the breach of some diligence due to that person. Where no duty of diligence appears relatively to the person injured there can be no presumption of its breach, notwithstanding the broad language of section 3033 of the Code. That section imposes the burden of proving the observance of such diligence as was due, not the burden of proving that none was due. For a railroad company to be exempt from liability for a personal injury done by the running of its locomotives or cars, it is only necessary for it and its agents to exercise all ordinary and reasonable care and diligence, (if any) due from it and its agents relatively to the person injured. A failure of diligence by these agents towards the company unless that failure also involves negligence as between the company and such person, will afford the latter no cause of action, and, in case of his death from the injury, would be no cause of action in favor of any person legally interested in his life.

2. Relatively to persons casually near the margin, but outside of a railroad company's track in the country, where there is no road or pathway in customary use by pedestrians, the company owes no duty or diligence in respect to the speed of its trains; and if, in consequence of very high speed, a train, or some of the cars, leave the track, and thereby a person thus casually exposed be wounded or killed, there is no cause of action, in the absence of evidence disclosing that there was reason for anticipating the presence of some one near the line of the road at the scene of the accident, or that the servants of the company in charge of the train actually saw some person there before the derailment occurred.

Error from superior court, Bibb county; C. L. Bartlett, Judge.

Action by Lizzie Holland against W. B. Sparks, receiver of the Georgia Southern & Florida Railroad, to recover for the death of plaintiff's son. There was a judgment of nonsuit, and plaintiff brings error. Affirmed.

C. C. Duncan, Owens Johnson, and Willingham & Lane, for plaintiff in error.

Gustin, Guerry & Hall, for defendant in error.

LUMPKIN J.

1. Relatively to one to whom no diligence whatever is due, there can, in legal contemplation, be no negligence at all in causing him a personal injury. Where some degree of diligence is due to another with reference to his personal safety failure to observe that degree of diligence will be negligence as to that person. In other words, negligence relatively to the safety of any particular person is the breach of some diligence due to him. When an action is brought for a personal injury caused by the running of a locomotive or car of a railroad company, the presumption of negligence does not arise against the company unless it appears that, at the time of the injury, there was due from the company to the person injured some degree of diligence to prevent that injury. The burden of proving it owed no diligence is not upon the company, but the plaintiff must show that, relatively to the safety of the person injured, some diligence was due by the company. As soon as he does this, the presumption immediately arises that the company's negligence caused the injury, and in order to escape liability it must rebut this presumption by showing the observance on its part of such diligence as was due. After much deliberation we are satisfied that nothing, even in the broad language of section 3033 of the Code, relieves the plaintiff, in cases of this character, from the necessity of showing that a duty of diligence, such as we have mentioned, existed, or imposes upon a railroad company the burden of proving, negatively, the contrary. A presumption of negligence is neither more nor less than a presumption that there was a breach of diligence. Such a breach could not, of course, be presumed in a case where it was affirmatively proved, as a matter of fact, that no diligence at all was due. If, therefore, it is incumbent on the plaintiff to make the duty of diligence relatively to the person injured appear, and he fails to do so, the case must stand upon the same footing, for, as to what a plaintiff is required to show, "that which does not appear does not exist." When the presumption of negligence has once been raised against a railroad company under the section above cited, and the company satisfactorily shows that its agents exercised all ordinary and reasonable care and diligence to prevent the particular injury for which the action was brought, it establishes its observance of the diligence due by it. What will constitute the amount or kind of diligence which will be required as "ordinary and reasonable" must necessarily vary under different circumstances. It cannot be measured or ascertained by any fixed and inflexible...