Metro. St. R. Co v. Powell

• Decision Date: 18 May 1892
• Citation: 89 Ga. 601,16 S.E. 118
• Parties: METROPOLITAN ST. R. CO. v. POWELL.
• Court: Georgia Supreme Court

16 S.E. 118

89 Ga. 601

METROPOLITAN ST. R. CO.

v.POWELL.

Supreme Court of Georgia.

May 18, 1892.

City Court — Jurisdiction — Declaration for Tort—Sufficiency—Misconduct of Counsel— New Trial—Grounds —Street Railway Company —Action for Personal Injuries — Contributory Negligence—Excessive Damages.

1. The city court of Atlanta, being invested by statute with power over both civil and criminal business at its March and September terms, was not deprived of its jurisdiction over civil business at those terms by a subsequent statute withdrawing from it all criminal jurisdiction. Such withdrawal did not operate by implication to abolish the March and September terms of the court. Railroad Co. v. Allison, 16 S. E. Rep. 116, (this term.)

2. A declaration for a tort will not be dismissed on motion at the trial term because of uncertainty in setting forth the date of the commission of the tort, or because some of the personal injuries complained of are not fully described. Such defects are matter for special demurrer. The court committed no material error in admitting evidence or in charging the jury.

3. The alleged misconduct of plaintiff's counsel, by disclosing, in the hearing of the jury, the contents of a paper that he sought to introduce in evidence, is not cause for ordering a new trial over the discretion of the presiding judge.

4. When the plaintiff or his counsel violates the conditions of a fair trial by stating facts to the jury not in evidence, or by other unfair and unwarrantable practice in the conduct of his cause, the court may declare a mistrial of its own motion or upon motion of the defendant, or the defendant may object to the impropriety and invoke such ruling thereon and such instructions to the jury as may prevent, as far as possible, any mischief to the cause of justice; but if no objection is made, and no instruction to the jury is invoked, the defendant may be treated as acquiescing, and a new trial for such misconduct may be denied.

5. As the court and the senior counsel for the defendant had the same understanding touching a disputed question as to whether certain evidence for the plaintiff was ruled in or ruled out, it is not cause for a new trial that the junior counsel for the defendant had a different understanding, with which the stenographer's notes agree, even if the court misunderstood the answer of the witness at the time the ruling was made, and ruled the question under a misapprehension of fact.

6. The party on whom the burden of proof rests is entitled to the aid of all legal presumptions arising out of the facts established, and, if these presumptions, added to the established facts, make a prima facie case, the burden is shifted to the other party.

7. If the plaintiff herself was free from negligence, and her injury was due to the concurrent negligence of the railroad company and the person with whom she was riding in a wagon, he not being her servant, and it not appearing that she was the owner of the horse or wagon, or that she had any agency or concern in procuring or in driving the same, and nothing appearing which tends to show that she was aware of any incompetency in the driver, the company is liable to her for all the damages consequent upon the injury, and can take no credit as to any part thereof on account of the contributory negligence of the driver of the wagon.

8. The evidence, though conflicting, warranted the verdict, and the damages found, though apparently extreme, are not so excessive as to warrant this court in directing a new trial over the approval of the presiding judge.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by H. M. Powell against the Metropolitan Street Railroad Company for personal injuries. Verdict in favor of plaintiff for $8,000. Defendant's motion for a new trial was overruled, and it brings error. Affirmed.

The following is the official report:

The declaration made the following allegations: On June 14tb inst. plaintiff, in company with several others, was riding in a wagon, driving a horse usually safe and accustomed to be driven without fright by and near dummy street engines. As they were passing along Georgia avenue, one of defendant's dummy engines, drawing passenger cars, was seen approaching about 100 yards distant, meeting the wagon and occupants. The horse took fright at the dummy, contrary to custom, and, without running, pulled the wagon on and near defendant's track, and, though the driver used the greatest precaution and diligence, became uncontrollable, and continued to pull on and near the track. The engine, in full view of plaintiff and her companions in the wagon, came rapidly on, heedless of their perilous situation on the track. The engineer, fireman, and conductor were seen not to be on the lookout ahead, and plaintiff and her companions screamed aloud to them, hoping to attract their attention, that they might stop the train without running into the wagon. Notwithstanding this, the engine and cars came on with un-abated speed, and plaintiff, despairing of having the defendant's servants in charge of the train see the danger and stop the train, sprang from the wagon, but before she struck the ground the engine rushed into the wagon, breaking it to pieces. She was caught between the engine and wagon, barely escaping with her life, and received the injuries hereinafter related. The injury occurred inside the city limits of Atlanta, where there is much travel. The engine was running without control, at the rate of about 18 or 20 miles per hour, much faster than is allowed under the city ordinances. Plaintiff and her companions were wholly without fault, and the injuries were caused solely by the gross carelessness of defendant. Defendant was grossly negligent in failing to keep a lookout ahead, and in running the train at the reckless and unsafe rate of speed mentioned. By said collision both bones of her left leg below the knee were broken, and one of the broken bones protruded through the flesh, and remained exposed until reset by a surgeon, in addition to these injuries she received wounds and bruises on her left side and thigh. Her left ankle also was badly sprained. "She received painful and permanent internal injuries to her back, spine, and intestines." Her injuries are permanent, have caused her great pain and bodily suffering, and will thus cause her to suffer throughout all her life. She and her minor children are wholly dependent upon her labor for a support. At the time of the reception of the injuries she was conducting a boarding house in Atlanta. [Her business was profitable, and she did and could earn about $100 per month thereby.] Her injuries have permanently debarred her from attending to her said business and duties, or any other kind of employment, [and in consequence thereof she has been compelled to abandon said business,] to her great financial loss and damage. She also alleged that she had been compelled to incur large expenses for nursing, etc., and alleged her age and expectancy of life. She claimed $15,000 damages. The declaration was filed in office on June 19, 1890. When the case came on for hearing defendant moved to dismiss it, because no date was alleged therein for the injury complained of, and no legal basis for damages as to loss of time. Defendant also moved to strike from the declaration, if it were not dismissed, the allegation that "she received painful and permanent internal injuries to her back, spine, and intestines, " because those words do not plainly, fully, and distinctly set forth the cause of action as to those alleged injuries, and do not put defendant on notice of how her back, spine, and intestines are claimed to have been injured. Defendant also moved to strike the allegation that plaintiff and her minor children were wholly dependent upon plaintiff's labor for support, because that allegation was wholly irrelevant, both as to herself and her children, and moved to strike the alleged profits of plaintiff's business and its character, because too uncertain elements of damages. The court overruled the motion first stated, as to the allegation of date, holding that the declaration alleged that the injury occurred on the 14th inst., and the court would construe that allegation in reference to the time the declaration was filed, and, thus construed, it meant, the 14th day of June, 1890. In reference to the exception that plaintiff sustained, in general terms, painful and internal injuries, without entering into detail, and showing wherein the injuries consisted, the court held that was matter for special demurrer at the first terra, and the exception was taken too late. The court further held that the portion of the declaration alleging that plaintiff was a mother, and had minor children dependent on her, should be stricken, but ruled that, while it would not be competent for plaintiff to show how much she earned per month as the profits of keeping a boarding house, still it would be competent to show what her business was; its character; that it was a boarding house; and what her ability was to attend to that kind of business; how many boarders she had; what amount of strength, time, and attention she devoted to it before, and what ability she had to devote to it after, she was hurt; but any reference to her profits should be stricken from the declaration. These rulings having been made, the plaintiff struck the allegation as to plaintiff and her minor children being wholly dependent on plaintiff's labor for support, and also struck the portions of the declaration stated above in brackets. Plaintiff tendered and had certified a bill of exceptions, "for the purpose of being made a part of the record as exceptions pendente lite." This interlocutory bill of exceptions sets forth the motions made by defendant, the order overruling them, etc., but does not state what errors were complained of. In its final bill of exceptions defendan...