Metro. St. R. Co v. Moore

• Decision Date: 11 October 1889
• Citation: 10 S.E. 730,83 Ga. 453
• Parties: Metropolitan St. R. Co. v. Moore.
• Court: Georgia Supreme Court

10 S.E. 730

(83 Ga. 453)

Metropolitan St. R. Co.

v.Moore.

Supreme Court of Georgia.

Oct. 11, 1889.

Negligence of Street-Car Driver — Who are Passengers.

1. A child nine years of age who was carried several blocks, the driver (who was also conductor) knowing him to be on board, was a passenger, whether he intended to pay fare or not, and was entitled to the diligence due to passengers of his age and discretion.

2. It was negligence for the driver needlessly to withdraw from the front platform, leaving the plaintiff and another boy thereon, and it was negligence not to be there ready to stop the team when the plaintiff fell or was thrown by the other boy off the platform upon the track in front of the car, the two boys engaging in a scramble to drive the horse, the reins having been left within their reach.

3. Though it is apparent that the plaintiff contributed to the injury, this court cannot be certain, on the facts in evidence, that the damages were excessive, the injury being immeasurable by a court as to pain and suffering, and the damages found being $5,000.

(Syllabus by the Court.)

Error from superior court, Fulton county; Clarke, Judge.

Butler Moore, by his next friend, sued the railway company for personal injuries. According to his evidence, he was nine years old at the time of the injury, had been up town to procure some meal for his mother, which he intended to send home by the driver of one of defendant's cars, got on the car, and rode for some distance on the front platform. Had no money to pay his fare. Was not going to ride, but the driver told him to get up. Did not Tell the driver he was not going to pay, or did not want to ride, but told him to stop the car, and when he stopped got on it. After the car had proceeded some distance, the driver went inside, and sat down to eat his breakfast. He did not stop the car, and left nobody to drive themules which were pulling it. A negro boy about 10 years old and plaintiff were on the front platform, and the negro started to drive. Plaintiff asked to be allowed to drive. The negro said nothing, but pushed plaintiff off. He caught to the front piece of the car, and was thrown under it. Two of its wheels ran over both of his legs. He was picked up by the driver, and carried home by some colored men. Stayed in bed a number of weeks, and suffered most excruciating pain, his legs being terribly mashed and broken. Has recovered his health, but his legs are badly bent and twisted, and permanently deformed. Probably the muscles and bones will never be as strong as they otherwise would have been. He lost a year from school. He still suffers, and is likely to suffer, some pain from the injury, especially in damp weather. His capacity for earning money was reduced one-fourth, according to the estimate of one of his witnesses. Plaintiff had ridden on cars, and generally paid his fare, thought he would get on and have a ride unless the driver told him to get off, and put his bundles down on the floor of the front platform. When he stopped the car, he was going to tell the driver to carry the meal home, and the driver said, "Get up there, sore toe;" but said nothing to him about paying his fare, and he had ridden on this driver's car without paying any. Was walking along, and the driver stopped, and he got on. The driver did not ask him to pay then. Other drivers on that line had carried bundles for him, but he did not think this driver ever had. The car was going up grade at the time of the injury. Dragged plaintiff six or eight feet before the first wheel struck him, eight or ten feet further before the second wheel passed over him, and went about twenty feet before it stopped. The driver jumped out, caught the brake, and stopped it. He did not know plaintiff was off until the wheels ran over him. From what one witness saw, the negro had not pushed plaintiff at all. Witness thought plaintiff went to step off, and stepped too far. Plaintiff testified that he did not...