The Western v. Meigs

• Court: Supreme Court of Georgia
• Writing for the Court: Lumpkin
• Citation: 74 Ga. 857
• Parties: The Western and Atlantic Railroad. vs. Meigs.
• Decision Date: 31 October 1885

74 Ga. 857

The Western and Atlantic Railroad. vs. Meigs.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

[Jackson, C. J., being d squal fied, Judge Lumpkin, of the Northern circuit, was appointed to preside in his stead.]

[74 Ga. 858]

Railroads. Damages. Negligence. Charge of Court. Evidence. Husband and Wife. Words and Phrases. Verdict Practice in Superior Court. Before Judge Dorsey. City Court of Atlanta. September Term, 1884.

Mrs. Mary Frances Meigs brought suit against the Western and Atlantic Railroad for the homicide of her husband, William H. Meigs, laying her damages at $25,000.

The defendant pleaded the general issue; that the injury resulted from the want of ordinary care and diligence on the part of the deceased; and that he was a trespasser on the track of the defendant, and while there, was injured by his own failure to exercise due and ordinary care.

On the trial, the evidence was voluminous, and need not be stated in detail. It is sufficiently outlined in the decision to understand the nature of the occurrence. The plaintiff testified that, at the time of the homicide, her husband was in his forty-ninth year, and earned from twelve to eighteen dollars per week. There was a considerable amount of evidence pro and con as to the value of his life.

The jury found for the plaintiff $4,000.00. No motion

[74 Ga. 859]

for a new trial was made, but the defendant excepted and assigned error on forty-two grounds. The following will show the rulings on which the decision is based:

(1.) That the court erred in overruling the objection made by defendant's attorney to the question asked by plaintiff's attorney to the witness, Fairbanks. " I want to ask you if people walk along the railroad along there?"— said railroad track not being a highway or any part of one.

(2.) That the court erred in permitting plaintiff's attorney to ask the witness, Fairbanks, questions, and said Fairbanks to answer the same, over defendant's objections, to the effect that a great many people passed along there on the track frequently, every hour in the day, and very large numbers of them between the rails and between the ends of the ties; and that this had been going on for two years, and still continued. —The objection was that said property was not a public highway nor any part of one.

(3.) That the court erred in permitting plaintiffs counsel, over the objection of defendant's counsel, to introduce and put in evidence an ordinance of the mayor and general council of Attanta, adopted July 18, 1881.—Said ordinance was objected to as irrelevant, and also as illegal. [This ordinance required the defendant to keep a flagman at the Foundry street crossing, and gave him the powers of a special policeman.]

(4.) That the court erred in permitting plaintiff, over the objection of defendant's counsel, to introduce and put in evidence the ordinance of the mayor and general council of Atlanta, section 768 of the Code of the city of Atlanta, 1883.—Said ordinance was objected to as irrelevant, and also as illegal. [This section required the keeping of a flagman at each of certain street crossings (Foundry street being among them), and made it a part of his duty to prevent trains from passing such crossings at a greater rate of speed than four miles an hour, and to protect the lives of persons passing along the streets at those points.]

[74 Ga. 860]

(5.) That the court erred in refusing to charge the jury as follows: "The defendant had the right to the exclusive use of its tracks, except at crossings established by law, and its employès had the right to presume that plaintiff\'s husband, if shown to be a person of full age and capacity, walking on its track at some distance before the engine, would leave it in time to save himself from harm, and unless it be shown to you by the evidence that the acts of defendant\'s employés in charge of the engine were wanton and malicious, or there was such gross negligence as is tantamount to wilfulness on their part, then your verdict should be for the defendant."

(6) That the court refused to charge as follows: "If plaintiff's husband was walking upon the track of defendant's road, at a place not a road crossing established by law, he was a trespasser thereon, and defendant would not be liable to plaintiff, unless it be shown to you by the evidence that the acts of its agents, acting within the scope of their duty, were wanton or wilful, or were so grossly negligent or careless that they evinced a reckless disregard of the safety of plaintiff's husband, or that they perceived the danger of plaintiff's husband in time to have avoided injuring him and made no effort to avoid doing so."

(7.) That the court refused to charge as follows: "If the evidence satisfies you that plaintiffs husband was killed by the trains of the defendant being run upon him, and that such killing amounted to a felony, plaintiff cannot recover, unless the evidence further satisfies you that the employés of the company, who caused the death of plaintiffs husband, have been first prosecuted for the felony, or some good excuse for the failure so to prosecute has been alleged and proved."

(8.) That the court refused to charge as follows: "If you find from the evidence that the plaintiff received life insurance money upon the death of her husband, you may consider the amount so received, and what income it is

[74 Ga. 861]

producing, in arriving at the amount of damages you find for the plaintiff, in the event you should find that the plaintiff is entitled to recover against the defendant, under the rules of the law, as I have given them in charge to you."

(9.) That the court erred in charging the jury in this case, and upon the evidence introduced upon the trial thereof, as set forth in his charge in various places, that the damages might be apportioned or diminished in proportion to the amount of default attributable to the husband of plaintiff. —Defendant insists that if said Meigs, by the exercise of ordinary care, could have avoided the consequences to himself, even when caused by defendant's negligence, there could not be any recovery whatever against it.

(12.) That the court erred in charging the jury as follows: "But if, on the other hand, you should believe from the evidence in the case that the husband of plaintiff was guilty of some degree of negligence, but could not have avoided the injury to himself caused by the defendant's negligence, if you believe it was negligent, by the exercise of ordinary care on his part, you would be authorized to find damages against the defendant, but these damages should be diminished in proportion to the amount of default attributable to him, the husband of the plaintiff."

(13.) That the court charged as follows: " Now, gentlemen of the jury, I have stated to you the respective claims of the parties in this case. What I have stated is but the pleadings; it is not evidence, and what is stated in the pleadings is not to be considered by the jury as evidence, but as pleadings. You are to try this case by the evidence as it comes to you from the witnesses, and with that, under the law as given you in charge by the court, you are to arrive at the verdict."

(14.) That the court charged as follows: "The plaintiff charges,...