The South Carolina R.R. Co. v. Nix

• Decision Date: 28 February 1882
• Citation: 68 Ga. 572
• Parties: The South Carolina Railroad Company. vs. Nix,administrator.
• Court: Georgia Supreme Court

68 Ga. 572

The South Carolina Railroad Company. vs. Nix, administrator.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Practice in Supreme Court. Railroads. Damages. Laws. Comity. Before Judge Pottle. Richmond Superior Court. April Term, 1881.

To the October term, 1877, of Richmond superior court Nix, administrator of Brown, brought suit against the South Carolina Railroad for the homicide of his decedent. The action was brought under the statute of South Carolina, which provides that actions for homicides shall be for the benefit of the wife, husband, parent and child of the person killed, shall be brought by or in the name of the legal representative, and the recovery shall be divided among the beneficiaries like personal assets of an intestate. (Rev. Stats. S. C, p 507.)

The defendant demurred to the declaration because itdid not set out for whose benefit the action was brought, and did not set forth the South Carolina law on which it was based. This demurrer was heard on April 15th, 1880, and sustained, but with leave to the plaintiff to amend. During the April term, 1880, of court the case was called for trial. Plaintiff tendered his declaration amended in accordance with the above stated ruling. Defendant again demurred on the grounds that the original declaration was not sufficient to amend by (no beneficiaries having been set out therein), and that the cause of action set out in the amendment was barred by the statute of limitations (two years being the limit fixed by the statute) The demurrer was overruled.

The evidence for the plaintiff made, in brief, the following case: On the evening of August nth, 1877, Brown, a colored man, took the train which left Augusta on defendant's road about 7 o'clock, P. M. When about two and a half miles from that place, the whistle was blown, the train stopped, and the conductor put Brown off. While they were going to the door, Brown pulled out two pieces of silver and said to the conductor, " Boss, don't put me off. I've got money to pay my way." The conductor said, "Why didn't you give it to me when I called for it?" Brown answered, "I was asleep." The conductor said, " You ought to keep awake and attend to your damned business. Now I have stopped the train, you have got to get off, " and required him to do so. While standing on the ground Brown again asked to be allowed to pay his fare and tendered money, which the conductor refused and pulled the bell-rope. Brown had hold of the railing of the car, and swung round as the car started. As he did so, one passenger remarked to another, " There goes a dead nigger." In putting him off, both the conductor and train-hand pushed him. Next morning the body of Brown was found on the track, the trunk being severed and showing signs of having been dragged along the track a short distance and badly muti-lated. He appeared to be tight at the time when he was put off. There was also testimony as to the value of his services, his habits, etc., not material here.

The evidence for the defendant was, in brief, as follows: The conductor asked Brown for his fare, but the latter said he had no money except a nickel, which he offered, and the conductor refused. The conductor told him he would have to stop the train and put him off. Brown said he had no money the train was stopped and he was told to get off, which he did, stepping clear of the edge of the car. After the signal for starting had been given, and the train was about moving (the cars near the engine having actually begun to move), Brown asked to be allowed to get on board, and said he had money, but did not show any. The train moved on. One witness (who was in jail under indictment for breach of trust at the time of testifying) stated that he was a passenger and saw the rear car pass Brown. A freight train left Augusta about an hour after the passenger train. The engineer kept a good lookout for obstacles on the track, but saw nothing, and there was no sign on the engine of having passed over a body. Another train passed the place about seven o'clock next morning, and the engineer discovered the body. No violence was used in putting Brown off. He got off on the left hand side of the track; when found the body lay across the right hand rail and was severed in two.

There was some other evidence as to the habits of Brown, etc., not material here.

The jury found for the plaintiff $1,500.00. Defendant moved in arrest of judgment, and also moved for a new trial on the following grounds:

(1.) Because the court erred in not dismissing the case.

(2.) Because verdict is contrary to the law and the evidence in the case.

(3), (4), (5.) Substantially as the second ground.

(6.) Because the court charged the jury as follows: " Ifthe conductor put him off the train for his refusal or failure to pay his fare, and while off the train and on the ground, while the train was in motion, Brown then be came willing and ready to pay his fare, and did tender it the conductor, who must be presumed to be familiar with his schedule and those of other trains and the necessities of the service, was under no legal obligation to stop his train and take him on, and if the injury occurred under this state of facts, the defendant is not liable, " the error of the charge consisting in this, that it left the jury to infer that if under the other circumstances, as stated, and the train was not in motion at the time, then the conductor would have been bound to have accepted the fare, and if he refused the defendant would be liable.

(7.) Because the court charged the jury, " If the conductor demanded his fare, and Brown failed or refused to pay it at first, and while he was taking him from his seat for the purpose of ejecting him. Brown, then on the train, tendered him the full amount of his fare, and it was refused by the conductor for the reason of his first refusal, an ejection then was unlawful, and the defendant is responsible for the consequences of that act of the conductor, this is true, especially if you believe from the evidence that Brown's failure to pay his fare when first demanded was due to his mental condition.

(8.) Because the court charged the jury: "If you believe that Brown was killed by the second train, and the first train was in no wise connected with the injury, then the plaintiff is not entitled to recover in this action; but if you believe that Brown was injured by the wrongful act of the conductor of the first train, the defendant is responsible though he was actually killed by the second train.

(9.) Because the court refused to charge the jury as follows, when requested in writing by defendant: " A passenger who fails to exhibit his ticket or to pay his fare on a reasonable demand therefor, forfeits his right to be car-ried further, and may be ejected at once, and after the signal has been given to stop the train for the purpose of removing him from it, cannot regain his right to be carried by his exhibiting it, or offering to pay, and a conductor is justified in persisting, notwithstanding its exhibition or such offer, in ejecting him."

(10.) Because the court refused to charge the jury as follows: " If the jury believe the killing was under circumstances which showed a wilful and malicious disregard of human life, then there can be no recovery in a civil suit for damages unless a criminal prosecution has been instituted, or plaintiff has satisfactorily explained why such prosecution was never instituted.

(11.) Because the court refused to charge as follows: " If the jury believe that Brown was not killed by the train from which he was ejected, but by another train passing along defendant's road, an hour or more later, such killing would be too remote a consequence of the eviction, and too different a transaction from that set forth in the declaration, and too much dependent upon other circumstances for the plaintiff to recover in this action."

(12.) Because the court refused to charge as follows:

This action is brought for damages for the killing of Anderson Brown by the train on which he had.been traveling; the proof must correspond with the allegation. Evidence that Brown was killed by defendant in a different way and at a different time will not sustain this action, although the defendant might be liable for such killing in another action. If, therefore, the jury believe that Brown was killed by another train of defendant than that from which he was evicted, the plaintiff cannot recover in this action."

The motion was overruled, and defendant excepted.

When the demurrer to the declaration was overruled, exceptions pendente lite were certified and placed on record. No mention was made of them in the final bill of exceptions. When the case was called in the supremecourt, counsel for plaintiff in error moved to be allowed to assign error on such exceptions. The motion was allowed, as set out in the first division of the decision.

Barnes & CuMMING, for plaintiff in error.

Foster & Lamar, for defendant.

Jackson, Chief Justice.

1. In this case, the record showed that bills of exceptions pendente lite had been taken and allowed in the superior court during the progress of the case, but no mention was made of them in the bill of exceptions finally certified, and which brought the cause before this court by writ of error, and no assignments of error are made thereon in that final bill of exceptions.

Thereupon the plaintiff in error moved to assign error on these interlocutory bills of exception, which appeared legally certified and allowed in the transcript of the record.

The motion must be granted under section 4250 of the Code, and the practice of the court in regard thereto and in construction thereof.

The only object of a bill of exceptions is that the judge may certify that which transpires before him, and which is not otherwise of record. When that is once done it need not be repeated; and, therefore, where he has allowed and made record of an interlocutory bill of...