Savannah v. Evans

Citation49 S.E. 308,121 Ga. 391
PartiesSAVANNAH, P. & W. RY. CO. v. EVANS.
Decision Date10 December 1904
CourtSupreme Court of Georgia

49 S.E. 308
121 Ga. 391

SAVANNAH, P. & W. RY. CO.
v.
EVANS.

Supreme Court of Georgia.

Dec 10, 1904.


RAILROADS—INJURY TO PERSON ON TRACK— EVIDENCE — COURTS—JURISDICTION—PLEADING — PROPORTIONATE DAMAGES — INSTRUCTIONS.

1. The defendant company failed to establish by proof its special defense that the railway track on which the plaintiff's husband was "killed was operated and controlled by another company having the same corporate name.

2. The court properly overruled the defendant's motion to dismiss the case on the ground that it was without jurisdiction to try the same, inasmuch as a Georgia corporation which transacts business in another state may be sued in this state by a nonresident for injuries inflicted in that state.

3. Where a plaintiff relies, as an act of negligence authorizing a recovery, upon the breach of a duty imposed upon a railway company by a statute of a foreign state, or by an ordinance adopted by a municipality thereof, it is incumbent on the plaintiff to specially plead the statute or ordinance; and, in the absence of proper pleading, proof in regard thereto is inadmissible.¶ 3. See Statutes, vol. 44, Cent. Dig. § 380.

4. It was not permissible for a witness in behalf of the plaintiff to state his "conclusion, " drawn from facts testified to by him, that, at the place where her husband attempted to cross the company's track, there was less danger to a pedestrian than there was at a near-by crossing. Nor was it the right of the defendant to introduce evidence tending to show general knowledge on the part of the public as to the danger incident to crossing its track at the point where the plaintiff's husband was killed.

5. Where a plaintiff alleges a number of acts of negligence on the part of the defendant, it is not necessary to a recovery that proof should be made of each and all of such negligent acts, if the defendant's liability to respond in damages be shown by establishing the commission of one or more of the acts of negligence complained of.

6. The court rightly construed and upheld as constitutional the statute on which the plaintiff relied as conferring upon her the right to recover proportionate damages in the event the jury should find that both the servants of the company and her husband were at fault.

7. The charge of the court as to the measure of damages recoverable in this kind of a case was warranted by the evidence, and was not open to the criticism that the court instructed the jury to consider certain elements of damages which the law did not contemplate should be looked to in estimating the loss sustained by the plaintiff.

(Syllabus by the Court.)

Error from City Court of Savannah; T. M. Norwood, Judge.

Action by Elizabeth Evans against the Savannah, Florida & Western Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

W. L. Clay and Walter G. Charlton, for plaintiff in error.

Twiggs & Oliver, for defendant in error.

EVANS, J. The plaintiff below, Mrs. Elizabeth Evans, brought a suit for damages in the city court of Savannah against the Savannah, Florida & Western Railway Company, a Georgia corporation, which she alleged was in the month of October, 1899. operating a railroad running into and through the town of Lakeland, in Polk county, Fla. Her complaint was that the defendant company on October 5, 1899, while operating an engine along its track through that town, ran over and killed her husband as he was, at night, attempting to cross its track at a point where, by long-established license, the public in general, and the citizens of that town, including her husband, had been permitted to cross. The acts of negligence with which the company was charged were (1) that the engine was being handled by a locomotive engineer whom the company knew was incompetent to run it, and who, without any warning to plaintiff's husband, suddenly and rapidly propelled the engine backward at a greater rate of speed than allowed by law; (2) that the company had failed to provide safe or suitable crossing facilities at the point where he was attempting to cross its track, and had further failed to provide any means of warning persons crossing at that point of the danger of approaching trains; (3) that the company's servants did not give the usual and proper signals of the approach of its engine, nor display the proper light or lights on the rear of the engine; and (4) after they saw, or were in a position to see, plaintiff's husband on the track, where he had a right to be, they failed to give him any warning of his perilous situation, and failed to apply the brakes on the engine, or to use any other preventive measures by which his life could have been saved. The plaintiff averred that her husband was at the time using due care and circumspection, but was unable to hear the approaching engine because of the roar and...

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