Hooper v. Southern Ry. Co.
| Decision Date | 30 October 1900 |
| Citation | 37 S.E. 165,112 Ga. 96 |
| Parties | HOOPER v. SOUTHERN RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A suit against a railway company for personal injuries to a minor, brought in his behalf by his father, as next friend is not, either as to cause of action or as to parties actually or substantially the same as a suit by the father in his own right against such company for loss of the minor's services, occasioned by those injuries. (a) The record of the former of two such suits is not, therefore admissible in evidence on the trial of the latter on the theory that the causes of action were substantially the same. (b) Nor is the testimony of a witness who was sworn on the trial of the former, and who afterwards died, admissible in evidence on the trial of the latter, under Civ. Code, § 5186.
2. The evidence in this case warranted instructions to the effect that a party is not entitled to recover damages resulting from an injury which he might have avoided or prevented by the exercise of ordinary diligence on his own part.
3. Charges which, in substance, laid down the rule that a father who used, or permitted his minor son to use, a given bridge, with full knowledge of specified defects therein, could not recover for injuries occasioned solely by reason thereof, were, in the present case, appropriate, and were not open to the criticism that they amounted to instructing the jury what was or was not negligence on the part of the plaintiff.
Error from city court of Floyd county; John H. Reece, Judge.
Action by J. N. Hooper against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Fouché & Fouché and R. L. Chamlee, for plaintiff in error.
Shumate & Maddox and J. B. F. Lumpkin, for defendant in error.
J. N. Hooper brought suit for $1,985 damages in the city court of Floyd county against the Southern Railway Company. In his petition for a recovery he alleged substantially the following facts: Petitioner is the father of Charles B. Hooper, a minor, born December 23, 1882, and as such parent is entitled to the services of his son during minority. In June, 1898, his son was in good health, a strong, vigorous boy, and his services were worth to petitioner $15 a month, and the value of his service would have increased as he grew older. Defendant's railroad runs through petitioner's farm in said county. There is also a wagon road running through said farm, and crossing defendant's railway upon said farm. As the wagon road approaches the railroad, it passes over a bridge built by defendant over one of its ditches; the bridge being 7 feet high, 11 feet long, and 7 1/2 feet wide. The bridge forms a part of the approach to the railroad, and is entirely upon defendant's right of way. This wagon road has been in constant use by the public, and has been recognized and kept up by defendant for 20 years or more. In June, 1898, while petitioner's son was driving two mules to a wagon loaded with cotton seed, he drove upon the bridge, using all care and diligence, and as one of the mules stepped upon and near one of the flooring planks of the bridge, the end of the plank, being insecurely fastened, flew up and struck the mule, frightening it, and causing it to shy, and push the other mule off the bridge, dragging the loaded wagon after it into defendant's ditch, breaking the wagon, and throwing petitioner's said son violently from the wagon, inflicting personal injuries to such an extent that he was obliged to remain in bed for a long while, and has not been able to perform any work since, and is a constant care and expense to petitioner. Among the grounds of negligence charged against the defendant was that it permitted the bridge to become rotten, insecure, and unsafe, the sleepers on which the floor was laid having rotted to such an extent that they could not hold nails; and that the plank which struck the mule projected more than half of its length beyond the sleepers, was insecurely fastened down, and the bridge was only 7 1/2 feet wide, and had no railing upon it. In answer to this petition the defendant denies that petitioner's son, when hurt, was using due care and diligence in driving the wagon; that he was a young boy, and an inexperienced driver. The mules became frightened. He was unable to manage them, and they ran over the side of the bridge with petitioner's son. Denies the allegation that defendant was guilty of any negligence that caused the injury received by petitioner's son. The accident was the result of careless driving of the boy, not the result of any defect in the bridge. Plaintiff himself was negligent in permitting his son to drive over the bridge under the circumstances, and in not taking charge of the team himself. That plaintiff could have avoided any accident resulting from the condition of the bridge by the observance of ordinary care, even if there was any defect in it. The bridge was good in every respect, and had been for 20 years, and, if defendant had invited the plaintiff or the public to cross such bridge, the invitation was to cross it as it had been kept for a great many years, to wit, for 20 years. After the introduction of evidence both for plaintiff and defendant, the jury returned a verdict for the defendant, whereupon plaintiff made a motion for a new trial, and assigns error on the judgment of the court overruling the same. It is unnecessary to give in detail the evidence introduced on the trial, but suffice it to say that the plaintiff introduced testimony tending to establish the main allegations of his petition, and the defendant also introduced evidence tending to establish its defense, and to show a want of liability for any injury caused petitioner's son.
1. (a) One ground in the motion for a new trial is that the court refused to allow plaintiff to read in evidence the record of the suit and judgment in the case of C. B. Hooper, by his father and next friend, J. N. Hooper, against the Southern Railway Company, tried in the city court of Floyd county, and a final judgment rendered therein in favor of C. B. Hooper which judgment was for damages sustained by the son by reason of the same acts of negligence of the same defendant set up and alleged by the father in the suit on trial; it being alleged in the first case that the son was injured and damaged, and in the other case that the father, by reason of the injuries to the son, was deprived of the services of the son during minority. The plaintiff offered this record and judgment as conclusive of everything in plaintiff's suit except the value of his son's services, and the court ruled it inadmissible for that purpose. It appears that this record was offered by the plaintiff on the ground that it was conclusive upon the father, plaintiff in this case, that he was a privy to it, because, if the son could not recover, the father could not recover; that the declaration in the suit by the son set up the same facts, the same dates, embraced the same subject-matter, and was conclusive between these parties and privies. It was, therefore, contended that it was conclusive as to the liability of the railroad company in both cases. On the other hand, it was contended that it was not the same case, nor the same cause of action. ...
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