Southern Bell Tel. & T. Co v. Lynch
| Decision Date | 26 November 1894 |
| Citation | 20 S.E. 500,95 Ga. 529 |
| Parties | SOUTHERN BELL TEL. & T. CO. v. LYNCH. |
| Court | Georgia Supreme Court |
Personal Injury — Pleading and Proof —Variance—Evidence—Examination of Person— New Trial—Newly-Discovered Evidence.
1. The declaration alleging that the plaintiff became entangled in a coil of telephone wire belonging to the defendant, which it had negligently left lying or hanging in the street, and that, the wire becoming entangled in her clothing, she was thrown violently on the pavement and injured, and the evidence showing that one end of the wire was fastened to a pole and the other to a tree, that it was about six or seven inches from the ground, that a parcel of it was tangled Hp, and that the plaintiff became entangled in it, and tripped and fell over it, there was no substantial variance between the allegata and the probata as to the manner in which the injury was occasioned.
2. Although the declaration did not specifically allege any injuries to the sexual organs of the plaintiff, there was no error in allowing the plaintiff to testify to such injuries; it appearing that her evidence as to the same was admitted solely for the purpose of throwing light on the general nature of her injuries and her pain and suffering, and that the jury was instructed not to consider the same for any other purpose.
3. There was no error in refusing to require the plaintiff, during the trial, to submit to a medical examination at the instance of the defendant; it appearing that she had previously been several times examined by physicians, one of whom was sworn as a witness for the defendant.
4. The newly-discovered evidence being mainly of an impeaching character, and not being such as would, upon another trial, probably produce a finding for the defendant, is not cause for a new trial.
5. The evidence warranted the verdict, and there was no error in refusing to grant a nonsuit, nor in denying a new trial.
(Syllabus by the Court.)
Error from city court of Atlanta; T. P. Westmoreland, Judge.
Action by Maggie Lynch against the Southern Bell Telephone & Telegraph Company for injuries received from falling over a wire. Judgment for plaintiff for $700, and defendant's motion for new trial denied. Defendant brings error. Affirmed.
The following is the official report:
Maggie Lynch sued the telephone company for damages claimed to have resulted from being tripped up by a wire, and thrown upon the street pavement. She obtained a verdict for $700, and the defendant's motion for a new trial was overruled.
The declaration alleged that plaintiff resided on Wheat street, in the city of Atlanta, and on December 31, 1892, about 9 o'clock at night, started to go from her home, across that street, to a store. She had not gone far when she became entangled in the coil of a wire belonging to the company, and by it negligently left lying or hanging in the street, whereby she was thrown violently upon the pavement, where she lay for some time, unable to rise, from the instantaneous pain and suffering caused by the fall. Then she managed to get into her house, a few feet away, where she took her bed, and has since been confined thereto. Soon after getting into the house she was seized with convulsions, and had one after another, from 24 to 36 hours thereafter, although a physician was called immediately upon her reaching the house. She suffered indescribable agony. She was married and pregnant, and the nervous shock and injury caused by the fall caused her to abort or miscarry. As the direct result of the fall she suffered, and still suffers, from inflammation of the tissues of the bowels, concussion of the spine, and injury to her back, hips, side, and head, and from the swelling of her feet and limbs. She is permanently injured, and will continue to suffer great pain as long as she lives. She had no notice that the wire was down in the street, had never seen it there, and, it being dark, did not know it was there until she became entangled in it. She was without fault or negligence. The fact that the wire was down and the danger attending the same were known to the company, or could have been known by the exercise of ordinary and reasonable care and diligence; and it was grossly negligent in not inspecting and looking after the same. Whether or not it was in use by the company at the time, it was placed upon the telephone poles for use by the company, and an inspection could not fail to reveal its dangerous condition. Plaintiff previously worked as a laundress and cook, besides cooking for her own family, and earned from $20 to $30 per month, but in future will be unable to earn anything, and will be a burden to her family. She sues for pain and suffering, lost time, deprivation of capacity to labor, mental anguish, disappointment of maternal hopes, permanent injury, and incapacity for happiness and...
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