The Macon & Western Rail Rd. Co. v. Davis

• Citation: 18 Ga. 679
• Decision Date: 31 August 1855
• Docket Number: No. 96.,96.
• Parties: The Macon & Western Rail Road Company,plaintiffs in error. vs. James M. Davis, administrator of Willis Boon, deceased, defendant in error.
• Court: Supreme Court of Georgia

18 Ga. 679

The Macon & Western Rail Road Company, plaintiffs in error. vs. James M. Davis, administrator of Willis Boon, deceased, defendant in error.

No. 96.

Supreme Court of the State of Georgia

AUGUST TERM, 1855.

Case, in Bibb Superior Court. Tried before Judge Powers, May Term, 1855.

This was an action on the case, brought by the defendant in error, James M. Davis, as administrator of Willis Boon, deceased, against the plaintiff in error, to recover the value of a negro man slave, and a rockaway carriage.

It appeared in evidence, that on the 14th day of December, 18—, the engine and cars of the defendant run over and killed and destroyed the said slave and carriage, at a public crossing over said rail road, at or near Prattsville, in the County of Monroe. It further appeared, that Mrs. Winn, who was in the carriage at the time, with her four children, saw and heard the train of cars before the carriage reached the crossing; and when she got near it, directed the driver to stop until the train passed; the driver refused to stop, and attempted to cross before the train. The mules attached to the carriage stopped on the rail road track and refused to move; and in that situation, they were run over by the engine. It also appeared in evidence that the engine and train were going at full speed when Mrs. Winn saw it approaching; that it was going an up-grade, and that the carriage could have been seen two hundred yards, as it approached the crossing. If the driver had obeyed the instructions of Mrs. Winn to stop, the injury would not have occurred.

Plaintiff failed to prove that he was the administrator of Willis Boon, to whom the negro and carriage belonged, though it was alleged and proved that the injury happened after the death of the intestate.

Plaintiff in error filed the following assignment of errors upon the bill of exceptions:

1st. The Court erred in refusing to charge the Jury, that the plaintiff could not recover without proving that he was the administrator of Willis Boon, deceased.

2d. In instructing the Jury that if the carriage of plaintiff, in passing along the highway, was voluntarily stopped, and blocked up that portion of the road crossed by the rail road, then it was not rightfully on the road.

3d. In instructing the Jury, "that the conductors and engineers are bound to use the utmost skill and diligence to prevent accidents at crossings; and if, by their negligence, an injury happens, such negligence is gross and the company are liable."

4th. In deciding and instructing the Jury, " that in view of the great danger attending the running of cars and engines, the care and skill in conducting them must be in proportion to the danger."

5th. In instructing the Jury, that " it is the duty of the defendants, when approaching a public crossing, to have the engine and train under the control of its managers, so that if persons are there, it is possible to stop; and if, from any cause originating in their management, a public crossing is approached with an uncontrollable engine and train, the negligence is gross, and the company are liable."

6th. In instructing the Jury, "that it was the duty of the engineer so to manage and check his engine as to have it under his control, so that he could stop it and prevent its running against the carriage while on the road; and if, for any cause, this was impossible, it was the duty of the defendant to prove such impossibility; and if they have not, they are liable." 7th. The Court erred in failing, altogether, to state the evidence of the defendant in summing up the evidence to the Jury.

8th. That the instructions of the Court to the Jury, upon the skill and diligence necessary to be exercised by the defendant in the action, are contradictory.

9th. The Court erred in deciding that the name of Thomas Dougherty should be stricken from the Grand Jury list before striking, because he was in the employment of the company in their workshop, but not on the road.

10th. The Court erred in refusing to allow defendant's Counsel to argue that plaintiff had failed to make out his case, because he had failed to prove that he was the administrator of Willis Boon.

11th. The Court erred in instructing the Jury, "that greater care was necessary in crossing near a church;" there being no evidence that this crossing was near a church.

Cole; Nisbet, for plaintiffs in error.

Whittle; S. T. Bailey, for defendant.

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

The first exception being waived as to the rejection of the Juror, Thomas Dougherty, for cause, and the last, also, as to the failure of the Court to sum up, fully, we proceed to notice the remaining assignments of error.

As the plaintiff failed to show that he was in the actual possession of the property for the injury to which the suit was brought, and relies upon constructive possession only, he was bound to prove his title on the trial. Such was the opinion of this Court in Robinson against McDonald, (2 Kelly, 116,) and such is the well established doctrine of the books upon this subject.

Where the plaintiff declares, as executor or administrator, upon a cause of action, arising in the time of Lis testator or intestate, and makes profert of the probate or letters of administration, the defendant cannot, at the trial, deny the title of the plaintiff as executor or administrator, unless there be a plea of ne ungues executor or ne unques administrator.

But where the plaintiff declares on a cause of action arising in his own time, and makes profert of the probate or letters of administration, and the defendant pleads the general issue, such plea did not formerly, nor until the rules adopted during the reign of IVth William, admit the plaintiff's title as executor or administrator.

Where the executor or administrator has been in the actual possession of the property which is the subject of the suit, it will not be necessary for him to give evidence of his title, as executor or administrator, in an action against a wrong-doer. And in such case, the naming himself executor or administrator in the declaration, may be regarded as mere surplus-sage.

However, where the plaintiff declares upon his constructive possession, as executor or administrator, he must show his title at the trial.

These are the general rules deduced from Mr. Williams on Execut...