(Syllabus by the Court.)
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Dependent.]
Error from Superior Court, Chatham County; P. W. Meldrim, Judge.
Action by C. M. Thomas against the Savannah Electric Company. Judgment for plaintiff, and defendant brought error to the Supreme Court, which transferred the cause to the Court of Appeals (154 Ga. 258, 113 S. E. 806). Affirmed.
Lawrence & Abrahams, of Savannah, for plaintiff in error.
Oliver & Oliver, of Savannah, for defendant in error.
BELL, J. [1-11] 1-11. The plaintiff, suing under Civil Code 1910, § 4424, recovered for the alleged negligent homicide of her child of the age of 6 years and 2 months. The defendant excepted to the overruling of its motion for a new trial. The ease is sufficiently disposed of by the headnotes, save as to the contentions, under the general grounds, that the evidence did not show that the moth-er was dependent, or that "this particular child was capable of and did make substantial contributions to its mother's support, " and with the exception of two assignments of the motion for a new trial, hereinafter to be stated. For the purpose of a consideration of these questions, we will set forth the testimony of the plaintiff In full:
"I live in Savannah and have lived here all my life. Lewis P. Thomas, Jr., was my son. He is now dead. He was 6 years and 2 months old when he died. He died on February 15, 1919. He died at West Broad and' Anderson streets. I was at home at the time, 512 1/2 West Anderson street, about the fourth door from the corner; or about a quarter of a block, from the place where the child was killed. I was living with Mrs. Mock. The boy had been to the store, and when he returned to the house he asked for a nickel to get marbles; a nickel was given to him, and he was going for some marbles across to the fruit stand. That was the last I saw of him before he was killed. Two other little boys—Bernard Mock and Freddie Mock—went with him. These two little boys are now in Brunswick. They have recently gone to Brunswick. Bernard Mock brought the information to me that my son had been hurt. I asked Mrs. Mock to go to him, because I was not at that time dressed. She hurried, and I followed her at once, and when I got to the corner she said he was dead, and some men carried him to the house. I saw him under the car, but I did not go up to him. Both sides of his head were crushed in, and he still had the nickel to buy marbles, still grasped in his hand.
"Prior to this time, I had been working. I had stopped working a couple of weeks before he got killed. I had been earning $15 a week. He had a very bright mind; he didn't forget anything; his physical condition was fine; he was healthy, strong, and active. Myself and husband are poor people. At the time this thing happened we were not living together; we were separated, but on friendly terms. Before he died I got a divorce from him. He died a year in March. In December before his death I got a divorce from him. The divorce was granted to me.
"As to the services this little boy rendered me, or how he helped me; he would go to the store to buy things for me, he would light the stove for me in the morning, and he would bring up wood. In cold mornings I would lie in bed, and he would go and light the stove, and come to the bed for me. When I sent to the store he would buy the things I sent him for. He would buy meat, bread, oil, and anything else I sent him for; he would dry the dishes at home; he tried to do anything that I would let him do; he would help to clean windows; he was anxious to do these little things; he would bring up wood and coal; I used an oil stove, but he would help the Mock boys to bring up wood and coal; he washed dishes. The value of his services to me was between $15 and $20 a month. If I had been compelled to pay a boy or a woman to do such services as my boy rendered me, I would have to pay from $3 to $5 a week. My boy helped me to make a living by doing these little things I have referred to."
On cross-examination:
"I have one child. I was married in 1910. I worked for two years before I married. 1 was working at the ruling machine at Braid & Hutton. My husband and myself separated a few months before the baby died At the time of this killing, we were not living together. When I went to Mr. Oliver to bring this case I did not tell him I was not living with my husband; he was not supposed to know whether 1 was living with him. He did not know whether we were separated or not. I notice in that petition there that the services of the boy are estimated at $10 per month; of course, the older the boy became, the more he would be able to earn. The boy had been with me two weeks before he was killed. Prior to that he had been to Bethesda for three months. I put him in Bethesda. I did that because during the time he was at Bethesda I was working, and was afraid to leave him in the street. I had some money. My brother was going to help me. I was fixing to have a soft drink place, so that I could have the boy with me. This child was taken out of Bethesda about two weeks prior to this occurrence. I wanted him to be with me. He was dissatisfied out there; every time I went out there he would cry. I did not get him out of Bethesda for the purpose of turning him over to his uncle, to be supported by his uncle.
"Q. Didn't you make the statement to Mr. Burroughs, superintendent of the Bethesda Home, at the time you got this child, in this county, that you wanted to get the child out for the purpose of turning him over to his uncle, to be supported by the uncle? A. That was my brother, and he was going to five with me—my single brother; he was not to be turned over to any one; I was supposed to look after him myself.
"At the time of this unfortunate occurrence I had been working down on the bay, but I had quit working there before I took the boy out of Bethesda. It was about two weeks after I got him this thing happened."
On redirect examination:
"I had quit working, because I was going to sell soft drinks and milk, and my little boy would help me to do that. I was going to keep this place, so as to have my baby with me and live together."
On recross-examination:
"There were two suits brought; I brought the first one, and just before he died he brought another suit."
Under the authorities cited in the head-notes, we have no hesitancy in holding that the evidence was sufficient to support the averments of dependency and contribution.
12. The plaintiff alleged in paragraph 10 and 11 as follows:
"(10) Petitioner shows that on said February 15, 1919, her said son was 6 years of age, and, while strong, healthy, active, and intelligent, was of immature experience and not able to exercise that degree of care and caution which an adult might have exercised. But, notwithstanding his tender years, her son was in the exercise of all ordinary and reasonable care and caution, and but for the negligent actsand conduct of the said defendant company her son would not have been killed.
"(11) Petitioner shows that her son's death is due entirely to the fault and negligence of the Savannah Electric Company, its servants, agents, and employees, as follows, to wit"— specifying the acts.
These averments and all others of the petition, except that it was a corporation with an office and place of business in Chatham county, the defendant answered with a general denial, and pleaded nothing further.
The two grounds of the motion for a new trial dealt with in headnotes 12 and 13 were as follows:
"(9) Because the court omitted to submit to the jury a substantial defense of the defendant, to wit, the contributory negligence of the plaintiff in permitting a child of tender years to go unattended upon a crowded street and upon street car tracks.
"(10) Because the court charged the jury as follows: 'When a defendant is guilty of negligence (and I do not mean to say that this defendant was or was not guilty of negligence), then it becomes the duty of all other persons to avoid, if they can, injury to themselves by the exercise of ordinary care on their part. If a person who has been injured after the alleged negligence has commenced can avoid the injury to himself by the exercise of ordinary care on his part, it is his duty to avoid that injury. In this case it is alleged and admitted that the child was 6 years and 2 months of age. Now the degree of care which a young child is to exercise is a matter for you to determine, due regard being had to the age of the child and its mental condition and physical condition, as far as the same has been disclosed by the evidence.' This was misleading. It was inappropriate and not adjusted to the evidence. This was not a suit by the child; it was a suit by a parent. The parent was charged with the duty of exercising ordinary care, and could have no benefit of the incapacity of a child of tender years whom she had permitted to wander, unattended, upon a crowded street upon street car tracks. Upon the other hand, she was charged with such incapacity."
It is doubtful if either of these grounds could be considered sufficient as assignments of error. The first merely states "that the court omitted to submit to the jury a substantial defense, " etc., without alleging that the omission was erroneous, while the other, though criticizing an instruction, fails likewise to say that it was error, if both are not imperfect for other reasons. But since we think that an affirmance should result, even conceding the technical sufficiency of these grounds, we will deal with them upon their merits, to the best of our understanding of their import.
Upon the authority of Atlanta, etc., Railway Co. v. Gardner, 122 Ga. 82 (7), 49 S. E. 818, it is contended that the pleadings were sufficient to authorize these exceptions....
