The Augusta v. Mcelmurry

• Decision Date: 31 January 1858
• Citation: 24 Ga. 75
• Parties: The Augusta and Savannah Railroad Company, plaintiff in error. vs. James R. McElmurry, defendant in error.
• Court: Georgia Supreme Court

24 Ga. 75

The Augusta and Savannah Railroad Company, plaintiff in error. vs. James R. McElmurry, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1858.

Assessment of Damages, in Richmond Superior Court. Tried on appeal before Holt, Judge, at October Term, 1857.

Under the provisions of the statute of 1851, 22, page 108, James R. McElmurry served a written notice on the Augusta and Savannah Railroad Company to appear at the Inferior Court to be held in and for Richmond county, on the Thursday after the first Monday in March, 1856, to show cause why the damages should not be assessed against said companyfor killing a negro woman belonging to plaintiff of the value of one thousand dollars, and tearing to pieces and injuring a certain cart of the value of thirty dollars, "by the running of a car, engine or locomotive or other machinery, on said road." The killing and injury were alleged to have been done by said road "on the night of the 4th February, 1856, in the county of Richmond, at or near the place where the common road leading to Bennock\'s old mill crosses the Augusta and Savannah Railroad, the same being nearer to McBean\'s than to any other station."

By consent of parties, the case was transferred to the appeal docket of the Superior Court of said county.

The case came on for trial on the appeal, at the October Term, 1857, of Richmond Superior Court, Judge Holt, presiding: After the testimony was closed, and argument by counsel, the defendant requested the Court to charge the jury upon various grounds, all of which the Court refused, save two.

To which refusal to charge, counsel for defendant excepted, and assigns error:

1st. Because the Court declined to charge as requested by defendant as follows: "This suit being a proceeding under a special statute, the allegations must conform to the proofs, and, if the jury find that the damage is alleged to have been committed on the 4th, and the proof shows that it was done (if at all) on the 5th of the month, the verdict must be for defendant."

2d. Because the Court declined to charge as requested by defendant as follows: "The act of January 22, 1852, is a penal statute, and is not the measure of the defendant's liabilities or of the plaintiff's rights in this civil suit."

3d. Because the Court declined to charge as requested by defendant as follows: "The civil liability of railroad companies, by the 5th section of said act, remains as before its passage, and is not affected by the act." 4th. Because the Court declined to charge as requested by defendant as follows: "In an action against a Railroad Company to recover damages for injuries sustained in consequence of the negligent running of railroad cars, in order to warrant a recovery by plaintiff, it must appear that the defendant\'s agents were guilty of negligence, and that the plaintiff, himself, and his servant, were free from negligence or fault;" and further, "it is necessary for the plaintiff to establish the proposition, that he himself and his servant were without negligence and without fault."

5th. Because the Court declined to charge as requested by defendant as follows: "The engineer was not bound to hold up his engine, provided he might have stopped the machine between the blowing post and crossing."

6th. Because the Court declined to charge as requested by defendant as follows: "No particular speed is prescribed by law, and the defendants are not liable unless the speed is shown to have been reckless; and it is necessary for plaintiff to show, before he can recover, that the engineer could not have stopped his engine before reaching the crossing, or that he saw the ol struction and heedlessly proceeded."

7th. Because the Court declined to charge as requested by defendant as follows: "The failure to blow the whistle, to check the speed, or to erect sign boards, does not necessarily make a road liable for damages done on the road, " and charged the same to be a want of due diligence by the defendant.

The charge of the Court on the fourth point was briefly this: that defendants are bound for reasonable care and diligence in running their cars, and a departure from the rules of running prescribed by law is a want of such care and diligence;—that when the plaintiff is chiefly in fault he can not maintain an action; where the parties are equally in fault, he can not maintain an action; but that though the plaintiff besomewhat in fault, yet, if the defendants have been guilty of gross negligence, he may maintain an action.

WM. W. HOLT, Judge.

Dec. 3d, 1857.

Millers & Jackson, for plaintiff in error.

Walker & Rodgers, for defendant in error.

By the Court. —Lumpkin, J., delivering the opinion.

Was the Court right in refusing to charge the jury, that if the injury was alleged to have been committed on the 4th day of the month, and the proof showed that it was done on the 5th, that the verdict must be for the defendant?

It is argued that this being a summary proceeding, and in derogation of the common law, should be construed strictly. Acts relative to railroads cannot be in derogation of the common law, for railroads were unknown to the common law; and the principles of the common law applicable to ordinary public roads and vehicles, would not apply to steam engines with their tremendous speed and power. Jones's Forms is a great innovation upon the common law, and yet being intended to advance the remedy, are liberally construed. Railroad acts, we apprehend should not be construed more strictly than penal statutes, and no such rule as to the time laid in the indictment is observed in criminal proceedings.

The act itself evidently contemplates some latitude in this respect. The notice given is to contain a statement of the time and place of the injury, "as near as can be ascertained;" but it is not required that it should set forth precisely when and where the damage was perpetrated. Pamphlet Laws, 1853-'4, p.93.

[2 and 3.] As to the 2d request, it is not pretended that the Act of 22d January. 1852, is the measure of the defendant's liability or of the plaintiff's rights in a civil suit. Wedo not know that we correctly apprehend the meaning of the terms in which this request was made. We do not suppose, that because this act imposed a fine of $1,000 upon one officer and of $500 upon another for violating its provisions, that therefore $1,000 or $500 was the measure of damages for the destruction of property regardless of its real value. The word measure was not used with etymological accuracy. It was simply meant to affirm by the 2d and 3d, that the act had nothing to do with the civil liability of the company.

If we are right in this construction, then we must dissent from the proposition. The Act certainly has something to do with the matter. In requiring blow posts to be erected at the distance of two hundred yards from the crossings and signal to be given, of the approach of the train, and to check the speed of the engine, so as to put it in the power of the engineer to stop entirely, to prevent collision at the crossings, and making it penal to omit these duties, the Legislature intended to indicate in unmistakable language he vie...