The Atlanta v. Venable

• Decision Date: 30 September 1881
• Parties: The Atlanta and West Point Rai1r0ad. vs. Venable, next friend.
• Court: Georgia Supreme Court

67 Ga. 697

The Atlanta and West Point Rai1r0ad. vs. Venable, next friend.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Railroads. Damages. Negligence. Evidence. Parent and Child. Charge of Court. Before Judge STEWart. Fulton Superior Court. April Term, 1881

In 1877 Mrs. Pyron was injured by the running away of a horse which she was driving near a crossing of the Atlanta and West Point Railroad. She brought suit against the railroad, alleging that her horse was frightened by defendant\'s train, that it had no blow-post at the crossing, gave no warning of approach, etc., and in its prosecution interrogatories were made out for her, and executed. Subsequently she died from the injuries sustained, and Venable, as next friend of her minor son, Willie, brought suit for the homicide of his mother. It is unnecessary to set out the evidence. The jury found for the plaintiff $794.60. Defendant moved for a new trial, on the following among other grounds

(1.) Because the court erred in admitting the interrogatories of Mary Pyron, the mother, taken in her case against said defendant

(2.) The court erred in telling the jury that "in estimating the amount of damages or the probable support that the mother might have furnished this child, you may consider whether or not, as the child advanced in years, less or greater sum would be required, or whether or not the child would have contributed to its own support, and what, under all the evidence, it is probable the mother, under the circumstances and in the light of reason and human experience, might probably have furnished to this child."

The error charged is that "may consider" should have been " must consider " The defendant was entitled to credit for what the child could have done towards its own support, as matter of law.

(3.) Because the court erred in charging that damages should be estimated from the date of the accident instead of from the death of the mother of the child.

The motion was overruled, and defendant excepted.

N. J. Hammond; Collier & Collier, for plaintiff in error.

T. P. Westmoreland, for defendant.

Jackson, Chief Justice.

1. The mother had sued for personal injuries to herself by the railroad company, and on that case her interrogatories were taken. Subsequently she died, and her child, by next friend, sued for her homicide and recovered. Objection was made to the introduction of her testimony on the former trial, but it was admitted. The admissibility of the interrogatories turns on the question whether the action was substantially on the same issue and substantially between the same parties.

Substantially, we think that the issue was the same. The injuries for which she had sued caused her death, and for that result of those injuries the child sued. In 45 Ga., 283, it was held that testimony taken in a criminal case before a committing court was admissible on a civil action brought for damages, on the ground that the cause of action being the injuries inflicted was in substance the same. It was ruled in the same case that the parties were substantially the same, though in the one case the state prosecuted and in the other the injured person sued. The reasoning on which the decision was put is that the great right of cross-examination had been exercised, and the plaintiff was represented by the state, and in that view was a substantial party. The Code uses the term "substantially " both as to the issue and as to parties, and the meaning of the Code was interpreted in that case, and we are bound by it.

The decision is right too; otherwise, if a narrow construction be put on the qualifying adverb "substantially, " so as to require the identical parties, its force is entirely gone, and that word had as well have been omitted. See Code, §3782; 45 Ga., 283; 1 Greenleaf 164, 198, 236 et seq. If the state represented substantially the plaintiff suing for injuries to his person, much more did the mother rep-resent her child, both suing for injuries in the same transaction. It is true that the child could not have sued had not her mother died; and in the mother\'s case the...