McBride v. Georgia Ry. & Electric Co.

• Decision Date: 16 May 1906
• Citation: 54 S.E. 674,125 Ga. 515
• Parties: McBRIDE v. GEORGIA RY. & ELECTRIC CO.
• Court: Georgia Supreme Court

54 S.E. 674

125 Ga. 515

McBRIDE v. GEORGIA RY. & ELECTRIC CO.

Supreme Court of Georgia

May 16, 1906

Syllabus by the Court.

Where the jury found that the plaintiff was not entitled to recover any amount as damages, the rejection from evidence of tables of life expectancy, and a charge on the subject of the measure of recovery for diminished capacity to earn money on the part of a woman who married after the injury, will not require a reversal, whether erroneous or not, unless it appears that such rulings were in some way calculated to affect the finding of the jury on the question of liability or nonliability.

The allowance of questions somewhat leading in form is a matter within the discretion of the presiding judge, and it will not be controlled unless abused.

If a person who claimed to have been injured while alighting from a railroad car, in answer to a question by an employé of the company as to how it occurred, made an admission tending to show that the injury resulted from the accidental slipping of her foot in getting off the car while it was standing still and not from any negligence on the part of the company's employés; and if such statement was freely and voluntarily made, and it did not appear to be an admission or proposition made with a view to a compromise, it was admissible in evidence, although after making it she proposed to the agent of the company that a compromise be made.

The mere fact that admissions of a party to a suit may have been proved, and that they do not accord with the testimony given by him as a witness, examined by interrogatories, does not render evidence admissible for the purpose of showing that he had previously made to another witness statements consistent with his testimony.

Where a young woman 19 or 20 years of age claimed to have been injured by the sudden jerking of an electric car of a street and suburban railway while she was in the act of alighting throwing her against the side of the car, and she testified that after this she walked into the station and sat down for a few minutes, and then walked to her destination, which was a house 200 or 300 yards distant, and where the evidence showed that upon arriving there she was observed to look pale, and to be trembling, and was asked what was the matter and made a statement as to the manner in which she claimed to have been injured, such statement constituted no part of the res gestae, and was properly excluded.

There was no error in charging that it was the duty of the jury to scan admissions, if proved, with care, but that, so scanning them, the jury should give them such weight as they thought such admissions entitled to.

While the charge of the court touching the continuance and termination of the relation of passenger and carrier between the parties may not have included all possible cases, either as to the commencement of such relation or its termination yet, as applied to the facts of the case on trial, there was no error in charging that if the plaintiff boarded one of the cars of the defendant and paid her fare, under the law she became a passenger of the defendant, and the relation of passenger would exist from the time she boarded the car until she had reached the place of her destination, and had been allowed a reasonable time and opportunity to alight from the car in safety, and that during the continuance of such relation the law imposed upon the company the duty of exercising for the protection of her person extraordinary care.

That a plaintiff testified by answers to interrogatories, and was not present at the trial, and that she was surprised by the fact that the defendant introduced evidence to show an admission on her part, furnishes no ground for a new trial.

None of the other rulings complained of are such as to necessitate a reversal.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by E. R. McBride against the Georgia Railway & Electric Company. Judgment for defendant, and plaintiff brings error. Affirmed.

The mere fact that admissions of a party to a suit may have been proved, and that they do not accord with the testimony given by him as a witness, examined by interrogatories, does not render evidence admissible for the purpose of showing that he had previously made to another witness statements consistent with his testimony.

Miss Phelps (who, pending the action, by marriage became Mrs. McBride) brought suit against the Georgia Railway & Electric Company, seeking to recover damages for a personal injury. She alleged that she boarded a car of the defendant in Atlanta, and paid her free to suburban station; that on arrival at the station she prepared to alight in the usual way; that while she was in the act of alighting the motorman suddenly turned on the current of electricity, causing the car to jerk, throwing her against the side of the car, and causing injury to her. By amendment it was alleged that, when the conductor announced the station, the cars stopped just above it, but practically at it, being the usual place for stopping at that station, on account of a downgrade just before reaching it; but the point of stopping was so near that plaintiff knew it was the proper place for her to leave the car. The defendant denied the substantial allegations of the declaration. The jury found for the defendant. The plaintiff moved for a new trial. The motion was overruled, and she excepted.

J. F. Golightly, for plaintiff in error.

Rosser & Brandon and W. T. Colquitt, for defendant in error.

LUMPKIN, J. (after stating the above facts).

1. Mortality tables are not admitted in evidence for the purpose of showing that the plaintiff was hurt, or that the defendant is liable, but as an aid to the jury in estimating the probable duration of the injury, and if it is shown to be permanent, and calculating the amount of damages, if there be a recovery. Where the jury has found that the defendant is not liable at all, a ruling as to the method of estimating the amount of damages, if the plaintiff is entitled to recover for a permanent injury, will not require a new trial, even if erroneous. Edwards v. Block, 73 Ga. 450 (3).

2. If the questions which the court allowed to be asked a witness and which were complained of as leading were in fact so, the court has a discretion on that subject. Civ. Code 1895, § 5283, and citations.

3. Admissions or propositions made with a view to compromise are not admissible. But where a party makes admissions without regard to a compromise, and when it does not appear that any compromise or proposition to compromise is in view, the fact that she may afterwards propose that the parties compromise will not have a retroactive effect, so as to prevent her independent admissions...