Southern Ry. Co v. King

• Decision Date: 17 May 1907
• Parties: SOUTHERN RY. CO. v. KING.
• Court: Georgia Supreme Court

57 S.E. 687

128 Ga. 383

SOUTHERN RY. CO.

v.KING.

Supreme Court of Georgia.

May 17, 1907.

1. Negligence—Imputed Negligence—Driver of Vehicle — Husband and Wife — Crossing Accident.

The doctrine that the negligence of the driver of a vehicle, who by such negligence contributes to cause a collision with a locomotive, is not imputable to another person riding by invitation in the vehicle, unless that person had some right or was under some duty to influence the driver's conduct, is applicable in the case where a wife is accompanying her husband in a buggy driven by him, and a collision occurs between the buggy and a locomotive, whereby she sustains injuries.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Negligence, § 149.]

2. Railroads—Injuries at Crossings—Evidence—Sufficiency.

The negligence of the husband, if he was negligent, under the facts in this case, not being imputable to the wife, the evidence was sufficient to sustain the finding in her favor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1138-1150.]

(Syllabus by the Court.)

Error from Superior Court, Habersham County; J. J. Kimsey, Judge.

Action by Josephine King against the Southern Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Erwin & McMillan and John J. Strickland, for plaintiff in error.

Howard Thompson and R. R. Arnold, for defendant in error.

BECK, J. The plaintiff, while riding in a buggy with her husband, who was driving, was injured by a collision with a locomotive, drawing a passenger train on the defendant's road, at a public crossing. There was evidence showing that the defendant's employes had neglected to observe the blow-post law, and that the train passed over the crossing at a high and negligent rate of speed. There was some evidence tending to show that a traveler along the public highway, on account of obstructions along and near the track of the railway, could not see an approaching train until at or very near the railroad track. But it is not necessary to set out this evidence, or to argue the question as to whether or not, under the evidence, the husband was guilty of such negligence in driving upon the track as would preclude a recovery for injuries resulting to him from the collision. The collision was fatal to him; but this suit was not instituted to recover damages for the homicide of the husband, but was brought to recover damages for injuries which the plaintiff received as a result of the collision, which she alleges was a result of the negligence of the defendant and its employes, and in no way the result of any negligence on her part According to the testimony of the plaintiff herself, the husband was the driver of the vehicle in which she was riding at the time she received the injuries, and she was in the buggy as his companion, but exercising no control whatever over him. She thus states the situation in her own words: "When the buggy was struck by the train, my husband was in charge of the buggy and driving. I had nothing to do with it. I was not driving the buggy—had nothing to do with driving the buggy. I did not tell him how to drive it, or where to drive it, or where to stop, had nothing to do with it. I was just going with him to church, and coming back with him from church. He was in charge of the mule and buggy." Under this evidence the question as to whether or not, if the husband was guilty of negligence in driving upon the railroad track, that negligence was imputable to her, necessarily arose.

Upon the question of imputable negligence the court charged the jury as follows: "I charge you that, if Mrs. King [the plaintiff] was in control of that vehicle in driving it, and, having driven it across the railroad, I charge you that, if then Mr. King, her husband, was guilty of negligence, whatever negligence he was guilty of would be imputable to her—she would be charged with it But if he was in control of the private conveyance, and driving it and controlling it, and she was going along with him as his...