Yonge v. Kinney

• Decision Date: 31 March 1859
• Parties: YONGE. vs. KINNEY.
• Court: Georgia Supreme Court

28 Ga. 111

YONGE. vs. KINNEY.

Supreme Court of the State of Georgia

MARCH TERM, 1859.

Case, from Cass county. Tried before Judge Trippe, at September Term, 1858.

This was action on the case brought by Martha Kinney, against the Superintendent of the Western and Atlantic Railroad, to recover damages for the killing of her son, John Choice Kinney, a minor, while a passenger on the cars of said road.

The jury found for the plaintiff three thousand nine hundred and sixteen dollars and sixty-two and two-third cents.

Whereupon the defendant moved for a new trial, which the court refused, and defendant excepted.

The facts of the case and the grounds of the motion for a new trial, are sufficiently stated in the opinion of the court.

D. A. Walker, for plaintiff in error.

Shropshire and Underwood, contra.

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

Was the court right in overruling the motion for a new trial?

The first ground of the motion was as follows: "Because the court erred in ruling out the answer of John B. Fulton, to the following interrogatory: \'was there any rule relative to persons remaining on the inside of the cars, or on the platform, while the cars were in motion; and if so, what was it?" said answer to which, and which was withheld from the jury, being in these words: "there was a rule forbidding all persons from being on the platform, when the cars were in motion.\' "

The ground on which the exclusion of this evidence was put, as we infer from the argument, was, that if such a rule existed, there was better evidence of it, viz: written evidence of it in the "order books" of the Road. And what was relied on in support of the ground, was the 7th section of the act of 1850, "to provide for the collection and safe keeping of the revenues" of the road, "to punish those who" might "attempt to defraud the same, and for other purposes." (Cobb, 419) That section is as follows:

"The Governor and chief engineer be and they are hereby authorized and empowered, to adopt such rules and regulations for the government and management of said road, as they may deem conducive to the public interest, not inconsistent with the constitution and laws of this State, which shall be recorded from time to time, as they are adopted, in one or more order books to be kept for that purpose." Does this section sustain the ground? Does it show that the rule, if it existed, must have been on record in some "order book or book" of the road?

We think that it does not, and for two reasons. First, although the section says, that the "rules" which the Governor and chief engineer may adopt, shall be recorded in an order book or books, it does not say, that they must adopt any rules. It goes no further than to authorize them to adopt rules. And it might well be, that the rule in question existed at the date of the act, and that thegovernor and chief engineer never adopted it, but left it as it was. In that case, it would he a good rule, even though not of record in any order book.

Secondly, we must doubt whether the intention was that the section should extend, to rules of this kind; whether the intention was that the section should extend to any other rules than rules to operate on the officers, the agents and the employees of the road.

1st. We think, then, that the court erred in not receiving the answer to the question.

The second, the third, the fourth and the seventh grounds, may be passed without further notice than this mention of them. They merely impute error to the jury, in finding against the evidence, or against certain charges of the court; and, it is needless to consider them, as a new trial is to be granted on other grounds.

We see nothing meritorious in the fifth ground. The qualification added by the Court to the charge requested, was obviously proper.

The sixth ground was this charge: "that the running off of the track, by the train, was prima facie evidence of negligence on the part of the officers of the road."

We are not prepared to say that this charge was wrong.

2. It is certainly true, that in a large number of the cases in which a train or car runs off the track, there is no negligence in any of the persons connected with the road; but it is also true, as we think, that in a still larger number of the cases there is negligence in some of the persons connected with the road; and the chances are greater, that any particular case shall belong to the majority, than to the minority. Consequently, when there happens the case of a car running off the track, and nothing but such running off appears, the presumption must be that negligence in some person or persons connected with the road, was the cause why the car ran off. But this presumption will be a slight one, and easily rebutted;the cases being in so large proportion, which are free from negligence.

The eighth ground was this charge: "that though the deceased may have been guilty of some negligence, this does not excuse the road, if they, " [the jury] "believe, the officers were greatly more at fault than deceased."

We doubt whether this charge is precisely right. See Davis vs. Western and Atlantic Railroad, 18 Ga. 679. Western and Atlantic Railroad vs. Wynn, 19 Ga. 440. And for my own opinion as to the rule, see Western and Atlantic Railroad vs. Wynn, decided at Macon, June, 1858.

The ninth ground was the charge: "that if the road would not bear a speed of thirty miles an hour, the speed should have been lessened so as to make it safe"—it being insisted, that there was no evidence to authorize the charge. And we can find none. Therefore, we must hold the ground a good one.

The tenth ground was, that the damages were excessive.

The damages were assessed at $3,916 66. The suit was brought by the mother to recover the value of the services of her minor son. If he had lived, she would have been entitled to his services, so long as he remained a minor, and no...