The Cent. R.R. v. Senn

• Decision Date: 30 September 1884
• Citation: 73 Ga. 705
• Court: Georgia Supreme Court
• Parties: The Central Railroad. vs. Senn.

73 Ga. 705

The Central Railroad. vs. Senn.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

[Bland ford J., being disqualified, Judge Brown, of the Blue Ridge Circuit, presided in his stead.]

Railroads. Damages. Negligence. Evidence. Witness. Charge of Court. Before Judge Willis. Muscogee Superior Court. November Adjourned Term, 1883.

To the report contained in the decision, it is only necessary to add, in connection with the second and third divisions thereof, the following grounds of the motion for new trial:

(3.) Because the court permitted Domingoes, a witness for the plaintiff, in rebuttal, after stating that he was not an expert, and testifying that before the runoff there was a jerking, bounding sensation, so that one could hardly walk in the car, but that he did not go back and look at the track after the accident, and that there had been some conversation excited by the motion and jerking, and giving his reasons for the opinion, to testify that from what he saw and felt, his opinion was as follows: "I think, sir, on a curve, when the car is running, the centrifugal force of the flange of the wheel against the iron rail is increased by the increase of the speed. We were running very fast, and my opinion is that the pressure must have been very great in consequence. Our sensation was not a rolling, but was a bounding; it gave the opinion to me that we had not mounted the track, but that the track had spread and we were between; and my opinion is that the speed we were going at forced the track apart and caused the run-off."

(4.) Because the court refused to rule out this testimony, on motion made therefor, on the ground that " such opinion was founded upon an assumption of the condition of the track being defective, —whereas the said witness had, during said examination, testified that he did not know what the condition of the track was, —and upon a theory given by the witness when he had also testified that he did not scientifically understand, and because such opinion was not given on facts."

(5.) Because the court permitted Clement, a witness for the plaintiff, not an expert, after giving his reasons for his opinion, to testify that " the train was running a curve, and the outside rail gave way and threw the car from the track."—Objected to as being matter of opinion.

(6.) Because the court permitted Hatcher—a witness forthe plaintiff, in rebuttal, in answer to a question, to state to the jury what he found upon examination of the track after the cars had run off, and as to the condition of the track, and having given the facts, then to state his opinion as to what caused the cars to run off—to testify as follows: " My opinion of it is this, that from the compression of that end of the rail it raised that, and the wheel struck it, and this gave way, because I saw evidences of a mark there; and if the railroad were to bring in the old rail, it would show for itself, —the one towards Macon, right at the joint though; but I will say that, for a short distance, I would say probably the distance of a coach, it had the evidences of where it had run across the cross-ties; and my theory was that the wheel struck that and ran off—one of the front wheels—and threw the balance of the coach off before the balance of the wheels got to it, and my opinion of the cause of it is the broken bar. I don\'t know of any other reason."—Objected to as matter of opinion.

(7.) Because the court permitted Rees, a witness for the plaintiff, in rebuttal, to testify as follows: " I did examine the track where the run-off occurred, and I was on the train at the time of the run-off, and my opinion is that the car running so fast, and that fish-bar being broken at that point, the track gave way and spread, and that caused this run-off."—Objected to as matter of opinion.

W. S. Wallace; Peabody & Brannon, for plaintiff in error.

Wm. A. Little; W. T. Gary, for defendant.

Brown, Judge.

This was an action brought in Muscogee superior court by Nancy E. Senn, against the Central Railroad and Banking Company, as lessees of the Southwestern Railroad, to recover damages sustained by the plaintiff by reason of the car, on which she was a passenger, being thrown fromthe track. It was alleged by the plaintiff that the injury was caused by the negligence and carelessness of the defendant in the construction of its track, and running of its cars at an unusual and dangerous speed. She claimed that, by reason of wounds, bruises and other injuries which she received, that she suffered great physical pain; that she paid out large sums of money for physicians\' bills and other expenses; that she was disfigured by a scar on her face. She also claimed to have been damaged by the loss of business, and inability to labor and attend to business, and that her injuries are of a permanent nature.

On the trial of the case, the defendant admitted that t he Central Railroad and Banking Company were lessees of the Southwestern Railroad, and were in possession and operating the same as common carriers for hire at the time the injuries were sustained.

The defendant denied that there was negligence or carelessness in the construction of the track or running of the cars, and insisted that the track was well constructed, and that they were running at a safe rate of speed at the time the accident occurred.

The jury found a verdict for the plaintiff for $10,000, and the defendant moved for a new trial on eleven different grounds, which motion the court below overruled, and refused a new trial, and that ruling is assigned as error, and the case brought by bill of exceptions to this court for review.

In the view we take of this case, it will not be necessary for us to notice specifically all the alleged grounds of error as set out in the motion for a new trial. We will therefore content ourselves by referring to such of them as we think control the case made by the record.

1. The first and second grounds in the motion will be considered together. The first ground is as follows: Because the plaintiff, being introduced as a witness in her own behalf, was asked by her counsel, in the direct examination, the following question, to-wit: (the witness havingfirst given the reasons upon which her opinion was based, as set forth in the brief of testimony): " What did you consider your business worth to you per year at the time you were injured?" To which question the defendant, by its counsel, objected, upon the grounds that this was not a proper rule to estimate the amount of damages sustained, and the court overruled...