The Cent. R.R. v. Freeman

• Decision Date: 31 October 1885
• Citation: 75 Ga. 331
• Parties: The Central Railroad. vs. Freeman.
• Court: Georgia Supreme Court

75 Ga. 331

The Central Railroad. vs. Freeman.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Railroads. Damages. Negligence. Charge of Court. Words and Phrases. Diligence Presumptipns. Prac-tice in Supreme Court. Verdict. Before Judge Hutchins. Bibb Superior Court, October Term, 1884.

Reported in the decision.

Lyon & Gresham, A. R. Lawton, for plaintiff in error

Hill & Harris Bacon & Rutherford, for defendant.

Hall, Justice.

This case has been twice tried; both verdicts were in favor of the plaintiff; the first was set aside, and a new trial granted. There was no appeal to this court from the grant of the first new trial, as the plaintiff a'leges, in defence to the rule laid down as governing such cases.

The defendant asks that the second verdict be set aside and a new trial be granted, upon the following grounds:

(1.) Because the courts in stating to the jury the claims made by the plaintiff in his case for injuries alleged to have been sustained by him, said, among other things, that if the injury received by the plaintiff'" disabled him from ordinary labor, " etc., —the plaintiff not having so claimed, and the statement thereof being calculated to mislead the jury.

(2.) Because, after charging the jury that the burden of proof is on the plaintiff to sustain the allegation, and that, to entitle him to recover, he must produce evidence sufficient to satisfy the jury that he has sustained an injury, the court then erred in charging, " and that that injury was the direct proximate consequence of the negligence of the defendant."

(3.) Because the court, in stating to the jury, in his charge, " to support his allegation the plaintiff brings evidence to show, 1st, the relation he bore to defendant, in order to raise a duty on defendant's part towards him, 2nd, the casualty and injury; 3rd, what ought to have been done by defendant and what actually was done."

(4.) Because the court, after charging that the defendant, as a carrier of passengers, was bound to use extraordinary diligence on behalf of itself and agents to safely transport the plaintiff and to protect him against injury to his person, erred in charging, " Where a casualty is shown to have occurred, it would authorize an inference that they were negligently done." Again, " and so, when the defendant owed a special duty of care to the plaintiff, a casualty is evidence from which the jury is authorized to presume negligence."—More especially are these propositions erroneous when applied to issues and different special grounds of negligence set out and relied on in the plaintiff\'s declaration, from each of which it was alleged the injury to the plaintiff resulted.

(5.) Because, having reference to the pleadings and issues in this case and the law, the court erred in charging the jury that "the measure of defendant's duty is to provide a safe track, comfortable, cars, ample couplings, coupling-pins, and all the other appliances necessary for the safety of its passengers, and that its agents or servants operate them in a careful and skillful manner, so as to render it reasonably certain that the passenger will suffer no injury to his person while being carried over its road. If the defendant failed to exercise the degree of care required of it in these respects, it is chargeable with neglect, and is liable in damages for any injury resulting therefrom."

(6.) Because the court erred in charging the jury that if, in selecting and furnishing material, machinery and all appliances necessary for these purposes, the defendant, acting through its officers and agents (as all corporations must), used proper care and diligence to ascertain by proper inspection and tests whether or not the machinery and appliances were sound or defective, and furnished none but what appeared to be free from defect, and were adapted to the purposes intended, so far as such examina-tion enabled them to determine, then they filled the meas-ure of their duty in this respect, and would not be liable for any injury which may have occurred; and this is the rule, notwithstanding the casualty may have resulted from actual defect in any of the appliances so furnished (as in a coupling-pin), provided such defect, if it existed, was so hidden as not to be discernible by careful examination.

(7.) Because the court erred in not confining the jury in their finding to the special matters of negligence set out and relied on by the plaintiff in his pleadings.

(8.) Because the verdict of the jury does not meet and cover the issues made by the pleadings on the part of the plaintiff in this: 1st. The plaintiff alleges the injury was caused by the breaking of a defective coupling pin. 2d By the breaking of a coupling pin by an improper and unnecessary jerk of the train, by the engineer's sudden appli cation of steam. 3d. By failure of the company to send a messenger far enough back on the track after the stopping of the train to warn the following freight train in time to stop before reaching the standing train, having time enough to do so. 4th. By the failure to make the proper connections after the parting of the trains, and moving the whole train out of the way before the follow-ing train reached that point, having time to do so. 5th. By the trains' getting out of time, off their regular schedules and all mixed up on the same schedule. 6th. Because the train on which plaintiff was a passenger was behind time and not on its schedule at the time of the collision. The verdict does not specify on which of these grounds of negligence the finding was made, or on which of them the defendant was at fault.

(9.) Because the verdict does not cover the issues made by the defendant's special plea of having fully settled with and paid the plaintiff for all special damages sustained by plaintiff as set out in plaintiff's declaration, other than such personal or bodily injuries, if any such were sustained by him. It, the verdict, fails to show how much damages are awarded for the actual personal or bodily injuries, ifany, or how much for the special claims set out and sued for.

(10.) Because the court erred in charging the jury, at the request of the plaintiff, as follows: "The defendant files a special plea as follows: 'That for all special damages sustained by plaintiff, as alleged in his declaration, if any was actually sustained, paid out or sustained by him other than such personal or bodily injuries, if any such were sustained by him, this defendant has fully settled with and paid said plaintiff for all such, and at his special instance and request.'

" If you believe from the evidence that the amount paid by the defendant, to-wit, about $78.00, if that was the amount, was in full of all special damages, such as doctor's bills and medicines, and other special damages, then you will find for the defendant on that plea as to such special damages, and not include anything on that account, if, in your verdict, you should find any amount of damages for plaintiff.

" The plaintiff, on the other hand, contends that the amount of $62.75 (if that was the amount paid on the bill made out December 13th, 1883) was for damages to personal effects which are not now sued for, and that the expenses for medicine and doctor's bills in that bill were only up to date of that bill, and that the payment made did not cover or include special damages, such as bills for medicine and doctor's bills, subsequently incurred.

" If you find from the evidence that the payment made was only for such special damages up to date, and not in full of such expenses as were subsequently incurred, then I charge you that you would be authorized to find for the plaintiff the amount of such expenses or special damages subsequent to said payment (as the evidence shows you to have been incurred, as it shows them), provided the evidence satisfies the jury that such expenses were incurred as a necessary and direct consequence of any injury sustained by the negligence of defendant, and having arrivedat the amount of such expenses, you should include it in the amount of damages you may award if you should award any amount of damages in favor of the plaintiff."—The de fendant insisting that the jury, under the issues made by the pleas, should have found either for the defendant on this plea, or if for the plaintiff, then they should have found the amount of such special damages, and the court erred in directing the jury to include such amount, when found, in the damages they might find for the plaintiff.

(11.) The verdict of the jury was illegal and incomplete, because there was no special finding on this plea of defendant.

(12.) The verdict of the jury was contrary to the evidence.

(13.) The verdict was contrary to law.

(14.) The verdict was excessive as to the amount of damages found. Upon each and all these grounds a new trial was refused, and the...