The Ga. R.R. v. Fannie

• Decision Date: 31 July 1874
• Citation: 52 Ga. 410
• Parties: The Georgia Railroad and Banking Company, plaintiff in error. v. Fannie V . Oaks, defendants in error.
• Court: Georgia Supreme Court

52 Ga. 410

The Georgia Railroad and Banking Company, plaintiff in error. v. Fannie V . Oaks, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

[COPYRIGHT MATERIAL OMITTED]

Railroads. Constitutional law. Venue. Husband and wife. Damages. Evidence. Witness. Before Judge Bart-lett. Greene Superior Court. September Term, 1873.

Fannie V. Oaks brought case against the Georgia Railroad and Banking Company, a body corporate located in the county of Richmond, claiming $20,000 00 damages for the homicide of her husband. The declaration stated that on March 21st, 1871, William R. Oaks, the husband of the plaintiff, was in the employ of the defendant as an engineer, and in charge of a freight train running from the city of Atlanta to the city of Augusta; that as said train approached the station of Union Point, in the county of Greene, the engine and train were thrown off the track and said William R. Oaks instantly killed; that this result was caused by the carelessness of the defendant, in this, that the switch target was in its proper position, indicating to the engineer that all was right, when in fact the bolt which secured the connecting rod with the drag iron of the switch, was out, leaving nothing to prevent the slipping of the track when the engine and train mounted it; that the plaintiff's husband was, at the time of his death, about *twenty-three years of age, and habitually contributed $80 00 per month towards her support; that she now has an infant child dependent upon her individual earnings.

The defendant pleaded not guilty. The evidence is unnecessary to an understanding of the opinion The jury found for the plaintiff $6,583 00, The defendant moved in arrest of judgment upon the following grounds, to wit:

1st. Because the superior court of Greene county had no jurisdiction to try said cause, said county not being alleged to be the residence of the defendant.

2d. Because, if the act of the legislature or sections of the Code making certain exceptions to the general rule that incivil suits defendants shall be sued in the counties of their residence, and allowing railroad companies to be sued by any person whose person or property has been injured by such railroad companies, in any county in which the cause of action originated, be not in conflict with clause 7th, section 12th, article v. of the constitution of Georgia, then the case at bar is not embraced in said exceptions.

The motion was overruled and the defendants excepted.

The defendant then moved for a new trial upon the following grounds to-wit:

1st. Because the court erred in overruling the demurrer to the plaintiff's declaration, on the ground that by the law of Georgia an employee of a railroad company cannot maintain an action against the company for injuries received whilst rendering the service for which he was employed, and his widow stands in the same position. And that if there be any statute conferring such right, it is repugnant to the 26th section of the 1st article of the constitution.

2d. Because the court erred in admitting in evidence the table as found on page 347 of Reese's Manual for Ordinaries, corresponding with the Northampton table, showing the value of an annuity of $1 00 at seven percent on a single life, at any age from one year to ninety-four, inclusive, there being no evidence in the table itself or in any other form, that in the preparation of such table, the probable duration of the life of a person engaged *in the vocation of an engineer on a railroad, was estimated.

3d. Because the court erred in admitting in evidence the declarations of James M. Houghton, made two hours or more after the conversation testified to by Newton and Walker had been had, said declarations being offered and admitted to sustain him after he had been contradicted by said witnesses as to statements made by him soon after the accident by which Oaks lost his life.

4th. Because the court erred in charging the jury as follows: "If the jury believe from the evidence that the train was running more than four miles per hour, the speed prescribed by the rules of the company in passing a switch, and that plaintiff's husband was not to blame for its overspeed, but exercised proper diligence in trying to check the train and that he failed to check it in consequence of the railroad company's not having suitable brakes, or enough of them for so heavy a train, or in consequence of the fault of other employees of the company in not doing their duty, then the jury should fine for the plaintiff."

5th. Because the court erred in refusing to charge as follows: "Plaintiff must recover upon proof of the acts of negligence and carelessness set out in the declaration, and proof of any other act or acts of negligence or carelessness of the employees of the defendant will not authorize a recovery, unless the jury is satisfied from the evidence that the acts of negligence set forth in the declaration have been satisfactorily proven."

6th. Because the superior court of the county of Greene has no jurisdiction of this case, but the superior court of Richmond county, where the principal office of the defendant is located. (This point was not raised by plea or otherwise on the trial.)

7th. Because the court erred in overruling the motion in arrest of judgment.

A new trial was refused and the defendant excepted.

J. A. Billups, for plaintiff in error.

*Reese & Reese; M. W. Lewis; C. Heard, for defendant

McCAY, Judge.

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