Holly v. The Atlanta St. R.R.

• Decision Date: 31 August 1878
• Citation: 61 Ga. 215
• Parties: Holly. v. The Atlanta Street Railroad.
• Court: Georgia Supreme Court

61 Ga. 215

Holly. v. The Atlanta Street Railroad.

Supreme Court of the State of Georgia

(August Term, 1878.)

Railroads. Negligence. Damages. Before Judge Hillyer. Fulton Superior Court. April Term, 1878.

Mary A. Holly brought case against the street railroad. The body of her declaration was as follows:

"That heretofore, to-wit: on or about the 20th day of January, 1877, whilst your petitioner was a passenger in one of the cars of said company, on Peachtree street, in said city, said car having a driver, but not having a conductor, a personal altercation or fight commenced between two of the male passengers who were also on said car; and that, by reason of the negligence of said corporation in not having a conductor to preserve the peace and to protect your petitioner, and others who might ride on the cars of said corporation, and also by the utter failure and gross negligence of the driver of said car, to stop said persons from fighting *or before the fight commenced, your petitioner became very much frightened, and in endeavoring to get off of said car, was caught in the door by the persons fighting, and was so severely mashed and bruised that she lost all consciousness, and did not recover till sometime afterwards, when she found herself on the sidewalk; that the bruises and injuries then and there received brought on a violent sickness which endangered your petitioner\'s life, and unfitted her for her ordinary duties. That she is dependent on her daily labor for her support, and that the injuries she then received lost a quantity of sewing which she had already engaged to do, and disabled her from undertaking her regular work for six or eight weeks.

"And your petitioner further shows, that by reason of the injuries aforesaid, she incurred great expense for medical attention and care, and for medicines. All of which resulted in loss and damage to your petitioner the said sum of five hundred dollars."

Plaintiff amended by alleging that the corporation "failed to eject said fighting and disorderly persons in time to prevent said injury to petitioner, as bound to do by their contract to carry your petitioner to her destination in safety."

On demurrer, the court dismissed the declaration, and plaintiff excepted.

M. deGraFFEnriEd, for plaintiff in error, cited as follows: Extraordinary diligence required, Code, §2067. Presumption against carrier, Code, § 3033. Liable for failure' to keep order, Code, § 2082; S3 Penn, 512; 6 Blackf, 158; 55 N. Y., 108; 53 Miss, 201, 225.

Hopkins & Glenn, for defendant, cited as follows: Difference between street cars and steam cars as to negligence in passenger and in company, 51 N. Y., 497; 109 Mass, 398; 38 Ga., 138; 55 Ib, 126; Code, § 2082. Power to prevent or mitigate injury must be shown, 53 Miss, 200; 34 Conn, 554; 53 Penn, 512; 76 Penn, 510; 97 Mass, 361; Sher. & Red. on Neg., § 278, b.; 11 Allen, 304 * Wharton on Neg., 646, a; Necessity to leap, 24 Ga-, 356; 26 Ib., 250.

Jackson, Justice.

This was a demurrer to the plaintiff's declaration, which alleged to the effect that the plaintiff was a passenger on one of the defendant's cars; that two men got to fighting thereon; that she attempted to get off the cars, and in doing so was caught in« the door of the car by the persons fighting, and was badly hurt by being severely mashed and bruised; that the defendant was negligent in failing to provide any conductor to preserve order on the car, and that the driver was negligent in failing to suppress the fight or to eject the combatants, or otherwise to come to her...