The Cent. R.R. v. Roach

• Decision Date: 28 February 1880
• Parties: The Central Railroad and Banking Company. v. Roach.
• Court: Georgia Supreme Court

64 Ga. 635

The Central Railroad and Banking Company. v. Roach.

Supreme Court of the State of Georgia

(February Term, 1880.)

Page 635 Railroads. Damages. Negligence. Master and servant. Charge of Court. New Trial. Before Judge Fleming. Chatham Superior Court. May Term, 1879.

To the report contained in the decision, it is only necessary toadd the following:

*Mrs. Roach sued the company for the homicide of her husband. He was an engineer in the employment of defendant. On the night of January 28th, 1878, three freight trains started from Macon to Savannah, on defendant's road. Roach was the engineer on the last train; one Greenlaw was engineer on the train next in front of him. While going round a curve, Greenlaw checked the speed of his engine, and continued to check it for some time, saying he saw a light in front; the conductor sent a man back to stop the rear train, and signaled to Greenlaw to go on, which he finally did. In the meantime the rear train came up. Roach seeing the train going with comparative slowness in front of him, blew on brakes, reversed his engine, told another employee on the engine to jump off, and then jumped himself. He was injured so that he died from the effects. The train ran on and just came in contact with the one in front before stopping; but the collision was not serious enough to injure any one on either train. As to the prudence of Roach in jumping, or the apparent necessity for doing so, and also as to the diligence of the company, the evidence was somewhat conflicting. There was a good deal of evidence in regard to Greenlaw's being afflicted with epileptic fits, and as to whether the company was chargeable with notice thereof—all of which is immaterial here. Roach was nearly sixty-one years of age at his death. According to the mortuary tables his expectancy of life was nearly fourteen years.

The jury found for the plaintiff $5,00.00. Defendant moved for a new trial, which was refused, and it excepted. The grounds of error necessary to an understanding of the decision are as follows:

1. Because the court erred in refusing to charge the jury when requested by defendant's counsel, as follows: "If the jury be satisfied that the plaintiff's husband was himself wholly without fault or negligence in connection with the incidents, or any one of them, which directly contributed to the cause of his death; andshould be further satisfied that by no effort of his own could have avoided the loss *of his life, but should find, on the other hand, that the railroad company was not guilty of negligence, or of failure in the discharge of ordinaryduty by the defendant, or either of its employees, which caused his death, still the plaintiff cannot recover."

2. Because the court erred in refusing to charge the jury when requested by defendant's counsel, as follows: "If the jury find that the capacity of plaintiff's husband to spring from an engine under the circumstances, with safety to himself, had been impaired by advanced age, or by any other cause, it was his duty to take notice of this fact; and if he failed to be mindful of it, and thereby incurred a greater risk than he would have been exposed to had he remained upon the engine, the plaintiff cannot recover."

[In connection with the refusal to charge as requested by defendant's counsel, the court charged as follows: "This fourth request calls upon me to charge you as law that if Roach, by pursuing any other course than the one actually pursued, would or might have saved his life, the plaintiff cannot recover. To give you this charge would be virtually to charge you to find a verdict for defendant, if you found the fact that if he had remained on the engine he would not have been killed. If this be so, Roach could not have known it. The fact that he jumped, if you find that he did jump, is proof that he thought jumping the safest course. If the fact now appears that another course was safer, it does not follow that he was in fault for jumping. His obligation was to pursue that course which under the circumstances was reasonable and proper. * * * I think an old man has as much right to jump as a young man, to avoid the consequences of an impending collision."]

3. Because the court erred in charging the jury as follows, as to the rule of damages: "First determine what amount per annum you will give the plaintiff; then calculate the present worth of that amount for each year separately, add these present worths together and find the aggregate amount in solido. This you must do for the number *of years you find, under the testimony, that Roach would have lived but for the accident."

4. Because the court erred in this: That after having charged the jury in full, and refused to give other charges as requested, and after the jury had retired to their room for a half hour or more, without any request from the jury and against the objection of defendant's counsel, he re-called the jury from their room into the court and read to them from 38 Ga., 410, as follows: "The pecuniary damages to the wife from the homicide is to be ascertained by inquiring what would be a reasonable support, according to the circumstances in life of the husband, as they existed at his death, and as they may be reasonably expected to exist, in view of his character, habits, occupation, and prospects in life; and when the annual money value of that support has been found, to give as damages its present worth, according to the expectation of the life of the deceased, as ascertained by the mortuary tables of well-established reputation."

[On the last two points the court certified as follows: "I further certify that the charge as to the rule for estimating damages, given when the jury was recalled, was in the place and stead of the charge on this point as originally given; I therefore submit that the original charge is no part of my charge to the jury."]

5. Because the damages were excessive.

6. Because the verdict was contrary to law and evidence.

A. R. Lawton; W. S. Basingkr, for plaintiff in error, cited 50 Ga., 465; 55 Ib., 133; 58 Ib., 485, 107; 119 Mass., 412; 122 Ib., 251; Am. Law Rev., 1880. pp. 295, 302, 304.

R. E. Lester, for defendant, cited Code, §§ 3033, 2083, 2202, 2067; 59 Ga., 441; 2 Campbell, 69; 3 Pet., 181; 9 Met., 1; 18 N. Y., 543; Ang. on Carriers, (4 Ed.) 568, top. 497; 8 Cent. L. J., 12; 7 Ib.. 222; 16 How., 469; Crawford *v. Ga. R. R. (Feb. T., 1879); Ang. on Corps. (4 Ed.), § 540-1; 58 Ga., 216; 15 Wallace, 649; Code, §§ 2961, 2972, 1680; 46 N. Y., 23; 15 Wal., 649; 56 N. Y. 295; 7 Me., 202; 14 How., 468; Slier. & Red. on Neg., 19; 3 Hurl. & C, 596; 20 Ga., 146; 45 Ib., 509; 56 Ib., 588; 58 Ib., 485; 59 Ib., 436; 38 Ib., 409; C. R. R. v. Richards, (Feb. T. 79); Sher. & Red. on Neg., §§ 28, 282.

Jackson, Justice.

Mrs. Roach, the widow of a locomotive engineer on the Central Railroad, in charge of the engine on one of three freight trains thereon, running at night, sued the railroad company for the homicide of her husband; the jury found for her $5,000.00 damages, the company made a motion for a new trial on various grounds, it was overruled on all, and the company excepted to the judgment overruling its motion.

We think that the motion should have been granted on some of the grounds therein stated.

1. The first ground is that the court declined to give in charge the following request: "If the jury be satisfied that the plaintiff's husband was himself wholly without fault or negligence in connection with the incdents, or any one of them, which directly contributed to the cause of his death; and should be further satisfied that by no effort of his own could he have avoided the loss of his life, but should find on the other hand that the company was not guilty of negligence, or of failure in the discharge of ordinary duty by the defendant, or either of its employees, which caused his death, still the plaintiff cannot recover."

Two things are essential to enable the plaintiff to recover. First, no fault on the part of her husband contributing to the occasion or cause of his death, and secondly, negligence or fault in the company, or some other...