The Cent. R.R. v. Moore

• Decision Date: 31 August 1878
• Citation: 61 Ga. 151
• Parties: The Central Railroad . v. Moore. Moore. v. The Central Railroad.
• Court: Georgia Supreme Court

61 Ga. 151

The Central Railroad . v. Moore. Moore. v. The Central Railroad.

Supreme Court of the State of Georgia

(August Term, 1878.)

Railroads. Damages. Negligence. Evidence. Before Judge Hillyer. Clayton Superior Court. September Term, 1877.

Reported in the opinion.

A. R. Lawton; N. J. Hammond; SPEER & Stewart, for the railroad, cited as follows: Verdict excessive, 38 Ga., 409 (3); Code, § 1792. Charge of court as to onus, Code. §§ 3033. 3248, and cases cited.

P. L. Mynatt; W. L. Waterson; E. W. Beck, for Moore, cited as follows: Railroad did injury, acts 1873, p. 88; acts 1872. Ib. 351. Requests not in writing, Code, § 3715; Rule 5 of Superior Court; 47 Ga., 119. Rule as to negligence, Code, § 3036; § 2972 has general application; 19 Ga.. 437; 18 Ib., 686; 38 Ib., 409; 61 Ib., 114; 60 Ib., 441; 35 Ib., 105. Error in decreasing verdict, 10 Ga., 45; Code, § 218. See Sher. & Red. on Neg., §§ 29, 30, 487; 6 Barb., 368; 1 Dill., 579; 61 Pa. 361.*

Jackson, Justice.

The plaintiff's husband was killed and found lying near the track of the defendant's road. She sued the road for damages, and the jury found $2,000.00. A motion was made for a new trial, the court granted it, unless a certain part of the verdict was written off, which was done, and the defendant excepted, and insisted that the new trial should have been unconditionally granted. Three grounds are relied upon here why this should have been done:

1st. Because the court erred in allowing the plaintiff to prove that there was a verdict found at the inquest held upon the body of deceased. 2d. Because the court allowed the plaintiff to prove that since her husband's death she made her living by working in the field. 3d. Because the court erred in the charge to the jury.

1. We do not see upon what principle evidence was admitted that there was a verdict at the inquest. It was irrelevant and immaterial, and while it may not have done much harm, it had better have been excluded.

2. In what way this plaintiff made her living since the deathof her husband, could not affect the legal right she *had to recover, or the amount of that recovery to which she was legally entitled. It was therefore wholly irrelevant to admit it to go to the jury, and it could but answer one end, and that illegally to excite sympathy, and influence improperly the finding of the jury. Therefore it was wrong to encumber the case with it.

3. The effect of the charge of the court complained of, was to put the burden on the railroad company of showing not only that its agents had used all ordinary and reasonable care and diligence, but that the plaintiff's husband was at fault also. When the company showed itself without fault, by showing that reasonable and ordinary care and diligence had been exercised by its agents and employees, then by section 3033 of the Code, there could be no recovery against it; and of course the burden was shifted. The effect of the charge was to require the company to go further and show that the plaintiff's husband was at fault. If the company was without fault it was wholly immaterial whether the deceased was or was not at fault. If both were inno-cent, the catastrophe was an accident, and there could be no recovery; if both were at fault and the plaintiff\'s husband\'s fault did not cause by itself the injury, then there would be a modified recovery for contributory negligence; if, though the company had been at fault, the plaintiff\'s husband could have avoided the injury by ordinary care, and neglected to do so, then there...