Central Railroad & Banking Co. v. Kitchens

Bleckley, Chief Justice. The declaration alleged that the company had injured and damaged the jplaintiff in the sum of $25,000, for that on the-day of May, 1888, by the careless running of its cars, the company ran over, mutilated and killed her husband, Abe Kitchens, without any carelessness or fault upon his part, but entirely by the negligence of the agents of said company in running the cars thereof; whereby she was injured and damaged. The company demurred to the declaration, on the ground that it set forth no sufficient cause of action, there being no specific or particular act of negligence alleged. The demurrer was overruled, and the plaintiff was allowed to amend her declaration, to the effect that her husband was an employé of the company, and was under a car at work in the line of his duty, in pursuance of an order of Tom Troutman, who was his superior, and while doing said work, a switch-engine struck back against a large number of cars, including the one he was under, and without any fault on his part, he was run over and so injured that he died. This amendment was objected' to on the ground that there was nothing to amend by, and that the amendment made a new cause of action. The case was tried, and a motion .for nonsuit being overruled, there was a verdict for the plaintiff. The company made a motion for a new trial, on the general grounds, and on several special grounds, one of which was that certain declarations of the deceased were admitted in evidence; another, that the court erred in charging’ that if it was the duty of Troutman to put up the danger signal for the protection of Kitchens as well as himself, and Troutman failed to do it, and if Kitchens relied upon this and it was not done, then the jury might be justified in finding negligence on Troutman’s part, and none on the part of Kitchens, and that they might then find a verdict for the plaintiff; adding that [88] all this depends, however, upon whether there was fault or negligence in Kitchens—the jury being the exclusive judges of the negligence. The overruling of the de-r murrer to the declaration, and of the objection to the amendment, and the denial of the motion to nonsuit, were excepted to, as was the refusal to 'grant a new trial. 1. The declaration, though it might have been too general, embraced a cause of action, and was amendable. The amendment introduced no new cause of action, but only explained more specifically and with greater particularity that which the original declaration comprehended. The cause of action was the homicide of the plaintiff’s husband, and the amendment served to describe more minutely than did the original declaration the mode in which the homicide was committed. Harris v. Central Railroad, 78 Ga. 525. 2. We think the record indicates that the sayings of the plaintiff’s husband were not a part of the res gestee, and had they been objected to on the proper ground, they should have been excluded. Railroad Co. v. Holland, 82 Ga. 257. But there is no statement in the record that they were objected to at all, and consequently we cannot'hold that there was any error in admitting them. - 3. The charge as to putting up the danger signal was error, the evidence being that the rule of the company as to that duty applied no less to the deceased than to Troutman. It’was no excuse on the part of the deceased that Troutman failed to obey a rule which was applicable equally to both persons concerned in the violation of the rule. Railroad Company v. McDade, 59 Ga. 73. 4. Of course there was no error in referring the question of negligence to the jury after the motion to non-suit' was overruled. See Georgia Reports, passim. If [89] the case were trimmed down to the legal evidence only, very likely a nonsuit might have been granted. 5. The verdict was clearly contrary to law and evidence, inasmuch as the homicide resulted from the failure of the plaintiff’s husband to observe a rule of the road requiring him to display a signal when at work under a car. According to the. evidence, if this signal had been put out, there is every probability that the calamity would not have happened. Employes cannot be permitted to violate the rules of the service in which they are engaged, and thereby create a cause t>f action in favor of themselves or their widows. Indirect suicide gives no title to post mortem reward. The court erred in not granting a new. trial. Judgment reversed.