The Macon & Western R. R. Co v. Winn

• Decision Date: 31 January 1856
• Docket Number: No. 82.,82.
• Parties: The Macon & Western R. R. Co., plaintiff in error. vs. Malinda Winn, defendant in error.
• Court: Georgia Supreme Court

19 Ga. 440

The Macon & Western R. R. Co., plaintiff in error. vs. Malinda Winn, defendant in error.

No. 82.

Supreme Court of the State of Georgia

JANUARY TERM, 1856.

Action for damages, in Bibb Superior Court. Tried before Judge Powers, November Term, 1855.

This action was brought by Malinda Winn, a minor, about 8 years of age, by her next friend, vs. The M. & W. R. R. for damages done to the plaintiff, by the engine and cars of defendant. It appeared, that plaintiff's mother and her four children were in a carriage drawn by two mules and driven by a negro man. That being near the crossing of the rail road, and hearing the cars, Mrs. Winn directed the negro to wait till the train passed. He said he could cross before it reached the spot, and endeavored to do so. When the carriage was immediately on the track, the mules became alarmed and refused to move. The engine ran over the carriage, killed the driver, the mules, three of the children, and fractured the skull of plaintiff; from which fracture, her right eye became smaller than the other, and she is disfigured for life. The evidence was conflicting, as to the engine runner making any effort to stop the train. A good deal of testimony was offered on either side. Counsel for the company, requested the Court to charge, among other things, "That if the plaintiff and defendant are both found to be negligent, and the plaintiff could have avoided the effects of defendant's negligence in the use of ordinary diligence, and did not, then the defendant is not liable."

The Court said, "That it did not exactly comprehend the application sought to be made of this request. If plaintiff could have extricated himself from defendant's negligence at all, then he was not in fault at all; for whether on or off the road, he had a right to be there. But to apply it to this case, I take it to be a sound and reasonable rule of law, viz.: If the Jury believe the negro was in fault in attempting to cross the track at that particular time, and that defendant was also in fault in his approach; and if they believe that the carriage, being on the track, could have been gotten off by the driver, or its inmates removed by ordinary diligence, and they did not, then there is no liability; and in fact, I should say, if they could have saved themselves by the utmost effort, and did not exert themselves, the defendant would not be liable. To this extent, this request is given in charge."

The charge as given, and the refusal to charge, are assigned as error.

The Jury found for the plaintiff a verdict for $7,000. A motion for a new trial, on the ground of excessive damages, was over-ruled; and this, also, is assigned as error.

Cole; NisbEt, for plaintiff in error.

E. Tracy, for defendant in error.

By the Court. —Lumpkin, J., delivering the opinion.

Our judgment in this case is, that it was error in the Court not to have given the third charge, as requested by Counsel for the defendant; and that a new trial, on that ac-count, should be granted. It contains, we think, the law which should control this case.

When the case of the Macon & Western Rail Road Co. against Davis, was before this Court last August, the great question then argued and decided was, to what degree of diligence the company was bound? The Circuit Judge had held, that the utmost diligence would alone excuse the company; whereas, in the opinion of this Court, they were liable only for want of ordinary care. We went further, and held, that notwithstanding the plaintiff was not free from fault, still, if the defendants, in the exercise of due care, could have prevented the injury, they would be responsible. We adhere to that decision.

But the proposition is now made for the first time; suppose the plaintiff, in the exercise of ordinary diligence, could have avoided the casualty, conceding there is fault on both sides, can there be a recovery?

This Court held, in Brannan vs. Mays, (17 Ga. Rep. 136,) that notwithstanding the defendant was in fault, the plaintiff was not entitled to recover, if, in the exercise of ordinary diligence, he could have avoided the injury; and that, too, where the plaintiff was wholly innocent: A fortiori, can he not recover, if he be at fault himself, provided he could, in the exercise of ordinary diligence, have escaped the mischief? Is this sound law?

In Butterfield vs. Forester, (11 Bast. 60,) Lord Bllenbor-ough said: "A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not, himself, use common and ordinary caution to be in the right." And the reported cases in support of this doctrine, are overwhelming. (Flower vs. Adam, 2 Taunton, 314; Clay vs. Wood, 5 Esp. 44; Mayhew vs. Boyce, 1 Starkie's Rep. 423; Riddle vs. Merrimack Locks, &c, 7 Mass. Rep. 183; Lane vs. Crombie, 12 Pick. 177; Thompson vs. Bridgewater, 7 Pick. 188; Harlow, vs. Hermiston, 6 Cowen, 191; Bush vs. Branierd, 1 Cowen, 78; Noyes vs. Morris, 1 Vermont, 353; Chaplin vs. Hanes, 3 Carr & Payne, 554; Pluckwell vs. Wilson, 5 Ib. 375; Sutton vs. Clarke, 6 Taunton, 29; Jones vs. Boyce, 1 Starkie\'s Rep. 493; Wadsworth vs. Willan, 5 Bsp. R. 273; Steele vs. Inland, Western Lock Navigation Co., 2 Johns. R. 283; Town of Lebanon vs. Olcott, 1 N. Hamp. Rep. 339; 3 M. & W. 248; 10 Ibid 548-\'9; 2 Amer. R. W. Cas. 114; 1 M. & Cromp. 20.) Many of these cases are cited in Wheaten\'s Edition of Selwyn\'s Nisi Prius; and the principle is adopted in the text, that to entitle the plaintiff to an action for damages for an obstruction, he must show that he acted with common and ordinary caution. And the same rule holds in cases of negligence, in the management of ships, whereby a loss accrues. (Luxford vs. Large, 5 Carr & Payne, 106; Handayside vs. Wilson, 3 Ibid, 528; Vennall vs. Garner, 1 Crompt. & Mees. 21.) The case of Washburn vs. Tracy, (2 Chip. 136,) is a strong case upon this point. There it was held, that "if but for the want of ordinary care in the plaintiff, in his use of the road, the injury would not have happened, the verdict should be for the defendant, notwithstanding he also was negligent."

Spencer vs. the Utica & Schenectady Rail Road Company, (5 Barbour, 337,) decides the precise question before us. In that case, it was held by the Supreme Court of New York, that in an action on the case against a rail road company, to recover damages for injuries sustained, in consequence of their negligently running their train of cars against the plaintiff's wagon, while he was crossing the rail road track, in order to warrant a recovery, it must appear that the defendant's agents were guilty of negligence, and that the plaintiff was, himself, free from negligence or fault.

And Mr. Justice Gridley, in delivering the opinion of the Court, says: "It was equally necessary for the plaintiff to establish the proposition, that he, himself, was without negligence, and without fault." This is a stern and unbending rule, which has been settled by a long series of adjudged cases, which we cannot over-rule if we would. (Citing 1 Cowen\'s R. 78; 6 Hill, 592; 19 Wend. R. 399; 6 Cowen, 189, 184, 191; 5 Hill, 282.)

Indeed, the Circuit Judge admits the principle, but fell into the fatal error, as we conceive, of restricting the use of ordinary diligence, on the part of the plaintiff, to the point of time when the carriage was on the track, and when the driver seems, from the evidence, to have applied the whip vigorously to urge the mules forward, but in vain; whereas, he should have made it cover the whole transaction, from the commencement to the termination of the catastrophe.

The only authority which seems to be in opposition to the principle contained in Brannan & Mays, is contained in a short passage in Butler's Nisi Prius, p. 26, which is in these words: "If a man lay logs of wood cross a highway, though a person may, with care, ride safely by, yet, if by means thereof, my horse stumble and fling me, I may bring an action." But the criticism of Chief Justice Parker upon this citation, shows that it is not repugnant to the principle of the great current of English and American cases, upon this subject. And that the meaning is, that notwithstanding a person using due care, may possibly pass the obstruction without injury, nevertheless, if one is injured, that is, if one who uses this care, does, by misfortune, suffer from the obstruction, he may recover. And the learned Judge further shows, that the cases cited by Buller, from Cro. James and Carthew, do not support his position, if he meant to say that a man might recover for an injury by an obstruction, without showing ordinary care on his part.

Is there any conflict between Brannan & Mays, and The M. & W. R. R. Co. and Davis? We do not perceive it. The two may, and do, well stand together. To illustrate, suppose the company and Mrs. Winn were both in fault, the rail road, in running at a speed beyond schedule time in approaching this crossing, and Mrs. Winn, in using a driver, who, from the use of liquor, or some other cause, refused to obey her command when she directed him to stop; and suppose the defendant could, but did not stop their train, to avoidthe collision, when they saw the carriage of the plaintiff approaching dangerously near, she using all proper diligence to prevent the contact. In that case, the decision in The M. & W. R. R. Co. vs. Davis, would have its effect; and the plaintiff would be entitled to recover. But again, let it be assumed that both are primarily negligent, as we have just stated, and the rail road puts forth all reasonable exertion to escape the disaster; but Mrs. Winn, observing no such care, madly rushes on to the collision. In this case, the ruling in Brannan & Mays would take effect, and the plaintiff could not recover.

Instead of repugnance, we see nothing but harmony. It is but the application of the same rule to both parties. It presents no impracticable issue to the Jury, but will work in every...