Savannah v. Smith

• Decision Date: 11 June 1894
• Citation: 93 Ga. 742,21 S.E. 157
• Parties: SAVANNAH, F. & W. RY. CO. v. SMITH.
• Court: Georgia Supreme Court

21 S.E. 157

93 Ga. 742

SAVANNAH, F. & W. RY. CO.

v.SMITH.

Supreme Court of Georgia.

June 11, 1894.

Injury to Child—Action by Mother — Amendment of Declaration—Effect on Limitations — Infant of Tender Years — Contributory Negligence—Instructions.

1.A wife, while living in a state of separation from her husband, who has abandoned and failed to provide for her and their minor child, having the entire care and custody of the child, is entitled to maintain an action against a railway company for injuries negligently inflicted upon the child since the separation took place, by reason of which she is deprived of his services.

2.Where a declaration filed in due time failed, for the want of vitally essential allegations, to set forth a cause of action, but such allegations were afterwards, by leave of the court, supplied by amendment, and at a subsequent term an order was passed striking the amendment, whereupon the plaintiff dismissed her action, and afterwards, within six months, brought another action, which substantially set forth the same cause of action contained in the original declaration as amended, this second action was a renewal of the first, and was not barred by the statute of limitations, although filed more than two years after the cause of action accrued.

3.On the trial of an action against a railway company for personal injuries to a child nine years of age, it was not pertinent and appropriate to charge the jury that "a child under the age of ten years is not presumed in law to have arrived at the age to discern between right and wrong, and of sufficient capacity and knowledge to make him responsible for his acts, and would not be chargeable of knowledge of right and wrong, unless it he clearly shown that he had such knowledge and capacity.If you find from the testimony that this plaintiff was injured, that he was nine years old or less, the law does not presume that he has arrived at that age so as to have the proper discretion in judging between right and wrong, unless it is shown by proof that he had."The child being before the jury as a witness, the jury should have been left free to determine for themselves, from his own and other evidence, what his capacity was for exercising care for his own safety at the time of the injury.

4.In view of the entire charge as given, there was no error as against the company in charging as follows: "If you find that the defendant company contributed to this accident or to this injury, and the boy also contributed to it in that event you would diminish the amount of the recovery in proportion to the amount of the negligence that he contributed to the injury."

(Syllabus by the Court.)

Error from superior court, Ware county; C. C. Smith, Judge.

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

Erwin, Du Bignon & Chisholm and S. W. Hitch, for plaintiff in error.

G. J. Holton & Son and Symmes & Bennet, for defendant in error.

SIMMONS, J. 1.Susan Smith sued the railroad company, alleging that on the 12th of September, 1887, her minor son Fulton boarded the defendant's train, and, while the train was running at considerable speed, one of the employes of the defendant push-ed him off the train, and he fell on the track, and a car wheel ran over one of his legs, making him a cripple for life.This declaration was filed January 12, 1889.By an amendment, which was allowed by the courtApril 8, 1890, the plaintiff alleged, In substance, that, at the time of the injury, the child injured as above set forth lived with her, and now does so; that her husband, the father of the child, long before the injury, had failed to provide for him, and had deserted her and her children, and the abandonment still continued'; that she had the entire care of the children, and, by reason of their abandonment by her husband, she was compelled to provide for them herself, and was therefore entitled to the custody of the injured child and the value of his services.The amendment sets out what his...