Southern Ry. Co. v. Dickson

• Decision Date: 11 July 1912
• Citation: 75 S.E. 462,138 Ga. 371
• Parties: SOUTHERN RY. CO. et al. v. DICKSON.
• Court: Georgia Supreme Court

75 S.E. 462

138 Ga. 371

SOUTHERN RY. CO. et al. v. DICKSON.

Supreme Court of Georgia

July 11, 1912

Syllabus by the Court.

In an action brought by a mother for the homicide of her son, where the original petition alleged in substance that the son contributed to her support, it was amendable by alleging that she was also dependent upon him for support. Ellison v Georgia Railroad Co., 87 Ga. 691, 13 S.E. 809.

Where under the provisions of the Civil Code 1910, § 5910 et seq. depositions of a witness are taken for use in a case pending at the trial of such case the depositions so taken may, in the discretion of the court, be read in evidence, notwithstanding the presence of the witness at the trial. W. & A. R. Co. v. Bussey, 95 Ga. 584 (1), 23 S.E. 207.

One ground of the motion for new trial was that, after the engineer of the train which killed the plaintiff's son had testified as to his experience as a locomotive engineer, and as to his observation as to the "way a moving train will pull a person," the court refused to permit the witness to testify as to "the manner in which a train in forward motion will pull or jerk such person catching hold of the same." As it does not appear from the ground of the motion what would have been the testimony of the witness on the point, had he been permitted to testify, no point is presented for decision.

Inasmuch as this court holds that the plaintiff made out no case authorizing a recovery, considering the depositions to which objections were made along with other evidence in the case, it is unnecessary to discuss points raised in regard to their admissibility, especially in view of the peculiar facts and circumstances under which the objection and motion to exclude were made and the time of the making thereof--a situation which is not likely to arise again. If the depositions should be offered in evidence upon another trial, such proper objections as may be raised to them can then be passed upon, not complicated by the peculiar circumstances under which the ruling was made at the last trial.

Where one knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such a risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, damages resulting from a hurt thus occasioned are not recoverable, although the same may be in part attributable to the negligence of the defendant.

Error from Superior Court, Fayette County; R. T. Daniel, Judge.

Action by H. T. Dickson against the Southern Railway Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

C. E. Battle and Howell Hollis, both of Columbus, and Blalock & Culpepper, of Fayetteville, for plaintiffs in error.

J. W. Wise, of Fayetteville, and R. R. Arnold, of Atlanta, for defendant in error.

FISH C.J.

Mrs. H. T. Dickson brought an action against J. A. Kenney and the Southern Railway Company for the alleged wrongful homicide of the plaintiff's minor son, Will A. Dickson. So much of the petition as is now material was as follows: "(3) Petitioner further shows that Will A. Dickson was a son of your petitioner, being 20 years old and unmarried, and living with your petitioner and waiting on her, and contributing to her support and comfort and looking after her welfare. (4) Petitioner further shows that she was entitled to the services and labor and association of the said Will A. Dickson, her minor son; your petitioner's husband, and the father of the said Will A. Dickson, being dead. (5) Your petitioner further shows that she is a widow, and the said Will A. Dickson being the only minor son of petitioner, and the only one whom petitioner had to live with her and protect her and labor and work for her."

The original petition was demurred to. One of the grounds of demurrer was that it did not appear from the allegations of the petition "that the plaintiff was dependent upon her son, wholly or in part, for her support." To meet this ground, the third paragraph of the petition, quoted above, was amended, over the objection of defendants, by adding to such paragraph the following allegation: "And upon whom your petitioner was dependent for support; your petitioner being a widow with two girls living with her, and no other man to work for and support her." The ground of demurrer above stated, was then urged to the petition as amended, and was overruled, to which judgment the defendants excepted pendente lite. On the trial at a subsequent term, a verdict was rendered in behalf of the plaintiff, and, the defendants' motion for a new trial being overruled, they excepted, assigning error, also, upon the exceptions pendente lite. The petition alleged that the plaintiff's son was killed about 5:20 o'clock p. m. on November 27, 1909, by being run over by a freight train, on which the defendant Kenney was engineer, at a public crossing over the track of the Southern Railway Company in the city of Fayetteville, this state. According to the petition, it was dark at the time of the homicide. The engine was running backwards, pulling a regular freight train having a tender and cars in front of the engine, with no lights on them, and no headlight on the engine. Other negligence alleged in the petition was as follows: "Said engineer and said Southern Railway Company did not slow up and slacken the speed of said train, so as to have the same under control as it approached the said crossing, where the said Will A. Dickson was killed, as alleged, said train being run at said time at a rapid rate of speed, to wit, at a speed of 30 miles per hour, and did not slacken and slow up and continue to slacken the speed of said train as it approached said crossing, so as to have the same under control, as the law requires in such cases." The answer of the defendants denied the material allegations of the petition.

There was evidence in behalf of the plaintiff to the effect that there were two tracks of the Southern Railway, one the main line, the other a side track crossing the public crossing on which the plaintiff contended that her son was struck and killed, at the time alleged, by a freight train running north on the main line, which was to the right, or east, of the side track, and that the engine pulling the train was running backwards, with the tender and a freight car in front or ahead of it, with no lights, either on the engine, the tender, or the freight car in front; that the body of the deceased was found to the left or west of the main line, and near the rail on that side, about 20 or 30 yards north of the crossing; and there were signs as if something had been dragged along near the left rail of the main track from a point from 5 to 10 feet north of the crossing towards where the body was found, with a little blood on some leaves 4 or 5 feet further north from where it appeared something had been dragged. A piece of skull was found by the side of the track, about 10 feet north of the place where the body was found. A witness for the plaintiff, who said he was a passenger on the train that killed plaintiff's son, testified: "It was kind of dark, and I recollect when it [the train] passed Hampton's crossing [whereon plaintiff claimed her son was killed]. It didn't blow for the crossing, and was running 30 or 35 miles an hour, as well as I can come at it." While there was some diversity in the testimony of the witnesses for the plaintiff as to whether it was dark at the time of the homicide, all of them who testified with reference to the train said that they saw the train as it approached the crossing. The plaintiff herself testified on this subject that "it was getting dark on the evening Will was killed," and that she saw the train before it reached the crossing, but could not see well enough to tell how the engine was running, whether backwards or forwards, because of the darkness.

It does not appear from...