Southern Ry. Co. v. Davis

• Decision Date: 24 June 1909
• Parties: SOUTHERN RY. CO. v. DAVIS.
• Court: Georgia Supreme Court

65 S.E. 131

132 Ga. 812

SOUTHERN RY. CO. v. DAVIS.

Supreme Court of Georgia

June 24, 1909

Syllabus by the Court.

Where a suit was brought by a woman to recover damages for a personal injury, and on the trial of the case she was not present, it was error for the court to allow a physician to testify that the reason that she was not in the courtroom was that she was very nervous, and he thought it would have a depressing effect upon her to hear the testimony, but that he had not offered any suggestion that she should not be present, it nowhere appearing that she had in fact remained away from the courtroom because of her condition or because of such opinion on the part of the doctor in reference thereto. The mere opinion of the doctor as to why he believed the plaintiff was not present, and as to the effect the hearing of the testimony might have upon her, was irrelevant.

Where in an action to recover damages for a personal injury, the plaintiff alleged that she was entitled to recover "for pain and suffering, for doctor's bills, and medicine," but on the trial no evidence was introduced to prove any amount of expense incurred for doctor's bills and medicine, it was error for the judge to charge that as to the "damages of the kind sued for in this case" there is no measure fixed by law, but the amount is left to be determined by the enlightened conscience of impartial jurors, where he did not instruct the jury that the suit for doctor's bills and medicine had been abandoned or that these items were not included in the expression "the kind sued for in this case," to which the rule of measurement announced in this charge was made applicable.

In an action for damages for a personal injury, based on negligence alone, and in which, under the pleadings and evidence, no question of willfulness, wantonness, oppression, or conscious indifference to consequences is involved, it is error to charge that: "In every tort there may be aggravating circumstances either in the act or the intention, and, in that event, the jury may give additional damages either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff."

In a suit to recover damages for a physical injury causing partial loss of eyesight, nervousness, and inability to follow the previous vocation of the plaintiff, it was inapt to charge the jury that: "In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff. In such cases no measure of damages can be prescribed except the enlightened conscience of impartial jurors." While damages on account of pain and suffering are to be measured by the enlightened conscience of impartial jurors, the charge above quoted was not strictly applicable to the case at bar which involved physical injury.

Except as above indicated, none of the grounds of the motion were such as to require the grant of a new trial.

Error from Superior Court, Muscogee County; J. H. Martin, Judge.

Action by A. C. Davis against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Charlton E. Battle and Howell Hollis, for plaintiff in error.

T. T. Miller, for defendant in error.

LUMPKIN J.

We deem it necessary to discuss only the ruling made in the third headnote. The plaintiff's petition alleged that at a place where two railroads crossed each other a train on which she was a passenger was running upon one line when an engine approaching on the other road ran into it, causing an injury to the plaintiff. The ground of negligence alleged was that the engineer of the defendant company on the engine which caused the injury did not stop within 50 feet of the railroad crossing, and did not approach it slowly, as required by law, but approached it at a high and dangerous speed, not making or attempting to make any stop whatever until the engine was run against the passenger train in which the plaintiff was seated. It was alleged that the engineer was "grossly negligent" in this regard, and ran his engine "recklessly and without regard to law." The evidence on behalf of the plaintiff showed that the collision occurred at the crossing; that the train on which the plaintiff was a passenger was approaching it, as was also the engine of the defendant; and that the latter ran against the train and caused the injury. The train on which the plaintiff was a passenger was being backed over the crossing; an employé of the company, who described himself as a porter, being on the rear end with the conductor. The engineer was a witness for the plaintiff. On cross-examination he testified: "I suppose I could see the Southern Railroad as far as the Southern Railroad could see me." On re-examination he testified that the rear end of his train was from 240 to 300 feet distant from him, and that he thought upon reflection that the engineer upon the Southern Railway train could see the train on which the witness was before the latter could see the train on the Southern Railway, that he misunderstood the question, and that "the way I was on my engine I couldn't see him at all. I meant as to my fireman, who was on the north side of the engine, the way the Southern train was coming. That's the side the Southern train hit me on." The porter who was on the rear end of the train which was struck testified, among other things, as follows: "I didn't know who was in charge of the Southern Railroad engine. I couldn't tell you what efforts, if any, he made to stop his train--that is, the Southern Railroad engine. I heard him blow for brakes as soon as he seen us, I reckon. He seen us, and he blowed for brakes about that time. *** When I threw the switch, I couldn't see up the Southern Railroad track, and I couldn't see up the Southern track until I got right on the crossing on account of that store there. Neither me or the fireman nor the Southern Railroad engineer could see each other because of that store being there. *** I couldn't see the Southern Railroad train until I was on the crossing, nor could the Southern Railroad train have seen us until we were on the crossing. Neither one of the trains stopped for that crossing on that day. The store that I have reference to is about 10 or 12 feet from the railroad." The evidence of the conductor who was on the rear end of the backing train with the porter, and who was also a witness for the plaintiff, did not conflict with that above stated, nor was there any substantial difference on that subject. He said: "After I saw the freight train coming, as I have stated, the accident could not have been avoided by any signal that I might have given the engineer, nor could my train have stopped before it got on the crossing from the time we first saw the Southern train coming." The sole act of negligence on which the plaintiff's right of action rested was a violation by the defendant's engineer of Civ. Code 1895, § 2234, which declares that: "Whenever the tracks of separate and independent railroads cross each other in this state, all engine-drivers and conductors must cause the trains which they respectively drive and conduct to come to a full stop within fifty feet of the place of crossing, and then to move forward slowly. The train of the road first constructed and put in operation shall have the privilege of crossing first." It was alleged, and evidence was introduced to show, that the road on which the plaintiff was traveling was first constructed, and that the crossing was, in the city of Columbus.

Various definitions have been given of negligence, among them being that it is the failure to exercise due care. Our own Code declares that: "Ordinary diligence is that care which every prudent man takes of his own property of a similar nature. The absence of such diligence is termed neglect." Civ. Code 1895, § 2898. "Extraordinary diligence is that extreme care and caution which very prudent and thoughtful persons use in securing and...