The Sw. R.R. Co. v. Johnson
| Decision Date | 31 August 1878 |
| Citation | 60 Ga. 667 |
| Parties | The Southwestern Railroad Company. v. Johnson. |
| Court | Georgia Supreme Court |
[Jackson, judge, having been of counsel, did not preside in this case.]
Railroads. Negligence. Charge of Court. New trial. Before Judge Crisp. Dougherty Superior Court. April Term, 1878.
Reported in the decision.
R. F. Lyon; D. A. Vason, for plaintiff in error, cited as follows: Indictment of employees necessary, Code, § 2970; 9 Ga., 555; 30 Ib, 232. Negligence of deceased caused injury, Code, §§ 3034, 2972. Defendant not negligent, Code, §§ 3033, 711; not within § 708.
D. P. Hill; H. Morgan; D. H. Pope;, for defendant, cited as follows: Request properly refused, Code, § 4327-9; 15 Ga,
349; 57 Ib., 357; 59 Ib., 593. Verdict right, Code, § 708; 24 Ga., 75; 38 Ib., 409.
The plaintiff brought her action against the defendant to recover damages for the homicide of her husband under the *provisions of the 2971st section of the Code. On the trial of the case the jury found a verdict for the plaintiff for the sum of $1,000.00. The defendant made a motion for a new trial on the several grounds therein stated, which was overruled, and the defendant excepted.
1. One ground of error alleged is, that the court refused to charge the jury as requested by defendant's counsel, "that the plaintiff could not recover unless the employees of the company, who caused the death of the husband, had been first prosecuted for the felony." To have given this request in charge, would have been for the court to have assumed that the evidence made out a case of felony, whereas that was a question for the jury, without any intimation or expression of opinion by the court in relation thereto. There was no error in refusing the request as set forth in the record.
2. The next ground of error is that the verdict is contrary to law. It appears from the evidence in the record, that the husband of the plaintiff, at the time he was killed, was lying upon the defendant's railroad track where the public road crossed the same. In this class of physical injuries the 2972nd section of the Code declares, that if the plaintiff by ordinary care, could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases, the defendant is not relieved although the plaintiff may in some way have contributed to the injury sustained. In the case of the Macon and Western Railroad Company v. Johnson, 38th Ga., 409, an action was brought by the widow of Johnson to recover damages for the homicide of her husband under the provisions of the...
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...his administratrix cannot recover, for the simple reason that had he lived he could not have recovered for his injuries. Southwestern R. Co. v. Johnson, 60 Ga. 667; Savannah, Florida & W. Ry. Co. v. Stewart, 71 Ga. 427(3); Bassett v. Callaway, 72 Ga.App. 97, 33 S.E.2d 112. And see Stone Mtn......
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... ... recovery, ... [36 S.E. 887] ... had he not died, was very clearly recognized in Railroad Co ... v. Johnson, 38 Ga. 409." Even more distinctly was it ... ruled in Berry v. Railroad Co., 72 Ga. 137 (Syl., ... point 1), that "a widow may recover for the ... ...
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...96. As to whether the compensation may have been inadequate see and compare Hendricks v. W. & A.R. Co., 52 Ga. 467; The Southwestern R. Co. v. Johnson, 60 Ga. 667(2); Porter v. Sou. Ry. Co., 73 Ga.App. 718, 37 S.E.2d 831 and Murray v. Woods, 106 Ga.App. 267(2), 126 S.E.2d 828; Johnson v. Co......
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...circumstances which would bar a recovery by him for damages, in case he had not died, will bar the wife from recovering. In Southwestern R. Co. v. Johnson, 60 Ga. 667, court said: "As the evidence discloses that plaintiff's husband, by the exercise of ordinary diligence, could have avoided ......