Savannah, F. & W. Ry. v. Stewart

• Decision Date: 09 February 1884
• Citation: 71 Ga. 427
• Parties: THE SAVANNAH, FLORIDA AND WESTERN RAILWAY v. STEWART.
• Court: Georgia Supreme Court

71 Ga. 427

THE SAVANNAH, FLORIDA AND WESTERN RAILWAY v. STEWART.

Supreme Court of Georgia.

February 9, 1884

September Term, 1883.

HALL J.

1. In a suit by a widow against a railroad company for the homicide of her husband, in case of a recovery, she may recover the full value of the life of the deceased, as shown by the evidence. The onus is upon the plaintiff to establish the amount of damage which she is entitled to recover, and one element of such proof is the number of years the deceased would probably have lived. If there is no proof on this point, the plaintiff has failed to make out a case and the verdict should be for the defendant.

2. There being no evidence to show that the person killed was drunk or in such a condition of intoxication as to put the engineer on notice of the fact in time to have checked his engine, charges based on that hypothesis were erroneous.

3. When a personal injury has been shown to have been done by the locomotives, or cars, or other machinery of a railroad company, or by any person in its employment or service, the presumption is against the company, but it may defeat a recovery by establishing either of the following defences That its agents have exercised all ordinary and reasonable care and diligence to avoid the injury; that the damage was caused by the negligence of the person injured; that he consented to it; or that the person injured, by the use of ordinary care, could have avoided the injury to himself although caused by the defendant's negligence. If both the person injured and the agents of the company are at fault, there may be a recovery, but the damages are to be diminished by the jury in proportion to the default of the injured party.

( a. ) Railroad companies are entitled not only to a clear track, but to the unobstucted use of all the means indispensable to the discharge of their duties. But while the obligation of the company to a trespasser on its track may not be the same as to passengers, employés or other persons having business with it and whose presence there is authorized, or even to persons who were there by its consent as a favor or gratuity; still, one who places himself upon its road, even in violation of the statute, does not forfeit all right to have its agents regard his personal security or life, or exempt it from liability for injury, if, by the exercise of proper precaution on its part, the casualty could have been avoided.

( b. ) If a person appears upon a railroad track in a helpless condition, and the engineer and his assistants discover him in time to stop the train before reaching him but recklessly, or even incautiously, neglect to do so, the company would be liable in damages, in proportion to its own default and that of the other party.

( c. ) This case distinguished from Central Railroad vs. Brinson, 70 Ga. 207.

( d. ) The facts of this case did not warrant a recovery against the defendants.

JACKSON, C. J., (BLANDFORD, J., joining him) concurred specially as follows:

1. There is no invariable rule for estimating the value of a life. Age, health, habits, money made by one's labor, furnish data from which such value may be decided by a jury. Tables of the probable length of life and its probable worth may be useful, but are not conclusive or absolutely essential for that purpose.

2. Sections 3034 and 2972 of the Code are in pari materia, but not identical. They provide for separate defences to suits against railroads. The first applies where the person injured causes the injury to himself, or consents thereto; the second applies where the consequences of the present or antecedent negligence of the defendant are impending, but may be avoided by ordinary care on the part of the other party. But include the doctrine of contributory negligence, and provide for a recovery in part, in case the negligence of both parties contributed to the injury.

3. Railroad companies are liable for injuries resulting from want of all ordinary and reasonable care in all cases, in general, and for the want of extraordinary care in the case of passengers and others under their care. What is ordinary and reasonable care depends on the facts of each case.

4. Merely to walk upon the track of a railroad is not an unlawful intrusion in such sense as to be an indictable offence under §§4437, 4438 of the Code.

5. No opinion is expressed on the facts of the case.

6. Reversal is concurred in because the charge probably confused the jury, and justice demanded a new trial.

Railroads. Damages. Negligence. Husband and Wife. Charge of Court. Before Judge MERSHON. Ware Superior Court. April Term, 1883.

Reported in the decision.

CHISHOLM & ERWIN; J. C. NICHOLLS, for plaintiff in error.

J. C. MCDONALD; L. A. WILSON; HARRIS & SMITH, for defendant.

HALL Justice.

The plaintiff, as the widow of James Stewart, instituted her suit against the Savannah, Florida and Western Railway Company, under Code, § 2971, to recover damages for the homicide of her husband, who, she alleged, had been killed by the careless and negligent running of the trains of the defendant; and upon the trial a verdict was rendered in her favor. The defendant moved to set aside this verdict and asked a new trial in its original and amended motion, upon the following grounds: That it was contrary to law and evidence, to the weight of evidence, and was without evidence to support it.

(1.) Because the court charged the jury in said cause as follows: " It is alleged on the part of the plaintiff that her husband was killed by the running of the cars or other machinery of the railroad company, or that he was wounded, and died from the effects of it. You look into the evidence first, to find out whether that is true; if you find that it was true that he was killed by the agents of the company, by their trains, or by reason of the running of their trains or engine, this would entitle the plaintiff to recover such damages as may have been proved to you, unless the defendant should show that, in order to rebut that presumption, they used all reasonable and ordinary diligence for the purpose of preserving that person from harm and protecting him; " said charge being erroneous: 1st. In that it required the defendant to show it used " all reasonable and ordinary diligence." 2d. In that it gave the jury to understand that the defendant owed a duty to the husband of the plaintiff of " preserving him from harm and protecting him," by the exercise of all reasonable and ordinary care. 3d. In that it required the jury to find a verdict for the plaintiff even though James Stewart could have avoided the effect of any negligence on the defendant's part, by the exercise of proper care.

(2.) Because the court charged the jury in said case as follows: " If they (meaning the defendant company) did not use all proper care and ordinary diligence to protect this person (meaning James Stewart), then they would be liable; then if you find that state of facts exists, you will look further in order to determine, to see whether or not the deceased was diligent or negligent; " said charge being erroneous, in that it held the defendant liable, unless the defendant used all proper care and ordinary diligence to protect James Stewart.

(3.) Because the court charged the jury in said case as follows: " If you find he (meaning James Stewart) contributed to the accident by his own negligence, or if you find it was with his consent, he could not recover at all in that case. If he contributed at all, however, by way of negligence, to the accident, then, while the plaintiff in that case may recover, you would be authorized to reduce the amount of the recovery in proportion to the amount of his contributory negligence; " said charge being erroneous: 1st. In that it laid down two contradictory rules as to the result of contributory negligence on James Stewart's part and tended to confuse the jury. 2d. In that, in effect, it instructed the jury that James Stewart's negligence would only authorize a reduction of the recovery. 3d. In that said charge is otherwise illegal.

(4.) Because the court charged the jury in said case as follows: " It is set up in this case that the accident was unavoidable, under the circumstances; to determine that now, you must look solely to the evidence as given. If a person goes upon the track of a railroad company, upon that line they are held to some diligence themselves, and if they voluntarily place themselves in a perilous position, while danger is approaching with their knowledge, and the train is approaching with their knowledge, that would be negligence; and if they were to lose their lives while in such position, placed there willingly and knowingly, then that would either defeat or reduce the recovery according as the evidence may show that it was impossible or by reasonable care and diligence on the part of the agents of the company the accident could not be averted, then no recovery could be had. But then if it should be found that after he had placed himself in a position of peril that with a proper degree of diligence and with the appliances at hand his life could have been saved, then a recovery could be had; " said charge being erroneous: 1st. In that said charge required of defendant's agents a greater degree of diligence than was required of them by law under the evidence in the case. 2d. In that said charge is otherwise illegal.

(5.) Because the court charged the jury in said case as follows " I charge you that in looking into the question of diligence, that you take all the evidence and try the case in its entirety together; take the whole case together, and if you find from the evidence that the schedule time was a given number of miles per hour and should find that the train was on its...