Augusta Railway Co. v. Glover

Bleckley, Chief Justice. 1. The material contents of the declaration are stated in the official report. A legal cause of action under the act of 1887 was set forth. It was not necessary to allege that the deceased could not have seen the car approaching him in time to avoid coming in collision with it, or that he made any effort to avoid coming in collision with it. It was not necessary to allege that the point at which he left the car was the regular stopping place, or that the stopping of the ear was for the purpose of taking on or letting off passengers. It was not necessary to allege that he gave any notice of his desire or intention to leave the car or that defendant’s servants had notice of such intention. It was not necessary to allege that the company had notice of his want of familiarity with the running and operation of electric — 142 — cars, or anything as to his size or appearance. The plaintiff’s right of action did not depend upon widowhood or living apart from her husband, and as she alleged dependence on this son, although he was only between fifteen and sixteen years of age, it was not necessary to allege in what way she was dependent on him or that he had ever worked or earned money. The declaration imputes the homicide to the negligence of the company and points out specifically in what respects the company was negligent. The plaintiff’s right to sue and to recover for the negligent homicide of her son is sufficiently apparent on the face of the declaration. There was no error in overruling the demurrer. 2. The motion to strike from the declaration the words, “ that the said John C. Glover was not familiar with the manner in which said cars of the defendant were run and operated; that he resided in the country and had never before ridden on said electric cars,” was properly denied, the motion to strike being made orally at the trial. If these words were objectionable as having no appropriate place in the declaration, the right mode of expelling them was by special demurrer filed at the appearance term. It would be altogether impracticable for the court, when the trial is on hand, to entertain motions to purge the pleadings of superfluous and irrelevant matter whether of form or of substance. The pleadings so far as possible should be settled before the trial term arrives, and this is the scheme of our law, except in so far as voluntary amendments are concerned. These, as matter of light, may be made at any stage of the case. 3. The special plea to the effect that the plaintiff and her son were both residents of South Carolina and that she has resided there ever since, presented no defence to the action. The statutory right is given by the act of 1887 to all mothers, no matter where they reside, and — 143 — without reference to the residence of the child whose homicide is the subject-matter of the action. Whenever a Georgia mother can recover, any other mother can do so under like circumstances. The act is general in its terms and has no hint of any discrimination in favor of residents or against non-residents. 4. Neither as a plea in abatement nor as one in bar is the pendency of a suit by the father of a minor son, for the damage occasioned to him by the loss of the son’s services or in any other respect, any defence to an action by the mother founded on the act of 1887. By the terms of that act the mother is entitled to recover the whole value of the life. A claim by the father and a suit to enforce that claim, whether it be well founded or not, cannot defeat or abridge the statutory right of the mother to bring her action and maintain it. If there is an exclusive right in either parent to complain of the homicide, it is certainly not in the father. But the truth is there is no exclusive right, for the same tortious injury resulting in the death of a minor child may be a damage to both, to the mother in the arbitrary measure of damages prescribed by the statute, and to the father to the extent of his own loss, irrespective of the statute, whatever that loss may be. The act of 1887 does not-purport to withdraw from the father any right of action which he had before by the common law. What it does is to confer upon the mother a right which neither of the parents had at common law. The statutory right of the mother is to recover for the child’s death; the common law right of the father is to recover for the loss of services which the child would have rendered him had the child not been disabled by the tort complained of. Augusta Factory v. Davis, 87 Ga. 648. 5. There was no error in admitting evidence of the father’s physical disability and consequent impairment of ability to labor. He was a laboring man and with — 144 — out fortune. This being so, anything which reduced his capacity to perform labor whereby to procure' the means of support for the plaintiff, his wife, would render her less independent of any aid from her children, including the deceased son. The evidence therefore would tend to show her partial dependence on that son for support present and future. The disability referred to had its origin long before the homicide of the son, and was in some degree operative at the time of the homicide and has been so ever since. 6. The father, mother and minor children all resided together and were mutually dependent upon the labor of the family for support. The deceased child, although not sixteen years of age, performed some labor, and it or its proceeds went into the common stock. Evidence to prove all this, or which tended to prove it, was admissible, and if this condition of affairs was established, the deceased son might well be considered as contributing substantially to the support of his mother. Members of the same household who live by their common labor and its. proceeds have a mutual dependence one upon another. Certainly so unless it be affirmatively shown that a particular member consumes as much, or more, of the common stock than he contributes to it. Even that would not be a conclusive test, for the services of a child to a mother or of a mother to a child may well be reckoned as contributing substantially to the support of the recipient far beyond any money value which the services may have, and the chief element of dependence may be in respect to-personal services of this nature. Moreover, in the case of laboring people some regard must be had to the probability of future dependence of an older member of the family upon younger ones. A son between fifteen and sixteen years of age whose vocation it is to labor for the family may well be regarded as one of the stays and props, both — 145 — present and future, of Ms mother, she being also a laboring woman and liable to become disabled by age or infirmity before her son shall have passed the meridian of life. 7. Evidence that the son had no previous experience in traveling upon an electric car was admissible, not for the purpose of changing or affecting the measure of the company’s diligence, but as a fact tending to illustrate the cause of his failure to alight in safety. The jury in looking at the facts and circumstances of the homicide would naturally desire to classify the particular passenger, not alone by his age but also by his experience or the want of it in handling himself as a passenger on electric cars. Familiarity with this mode of transportation would qualify him to see and appreciate danger which he would not be likely to observe if he was wholly without experience. With experience he might be chargeable with fault; without it with none. And hence in the one case his failure to come oft’ safely might be attributable to his own negligence in part or in whole, whereas, in the other case, he might be treated as free from any negligence whatever. It may be that the evidence might have other bearings, but it has this at least. 8. The negligence charged as to gates was in not haying the gate of this particular car closed on the side next to the parallel track. We think what the president of the company would have testified as to his observations on other double-track lines of street-cars in various cities, was not relevant, and was consequently properly rejected. Two reasons against the. admissibility of this evidence occur to us: the first is, that the practice of other lines would not serve for comparison on the question of diligence, unless it was shown that these lines were properly equipped and managed or were so recognized and reputed to be by experts in the business; the other is, that it was not stated whether the other lines — 146 — had gates to their cars or not, but only that gates were not used. There is no recital in the record of what was proposed to be proved by the president except what is quoted, in the 8th head-note, from the motion for a new trial. If the lines examined by the 'president were without gates to their cars, their practice in not using gates would throw no light on the diligence of a company which, like the defendant, has provided gates but omits to usé them. 9. There may be no negligence whatever in failing to have gates, for the very highest order of equipment may be dispensed with, provided the equipment is sufficient to come up to the standard of extraordinary diligence. This standard may be reached short of the very best or the superlative of the attainable. But when a company has provided gates, due diligence might require it to use them, and failure to use them might be negligence in the given instance. "Whether it would be or not is a question of fact for the jury. There was no error in so treating it. And this is so irrespective of the particular object which the company had in view in procuring the gates, or of its own practice in their use. A hackman might put brakes on his hack for use in descending mountains only, and might restrict the use by his own practice to the making of such descents, but having them upon his vehicle it might be negligence not to use them on proper occasions in descending ordinary hills as well as mountains. Extraordinary diligence may require the carrier to use what he has though it would not require him to have as much as he has provided. 10. The charge of the court that “ carriers of passengers are required to provide at points of destination places where passengers can leave their cars safely,” was somewhat misleading as applied to a street railway. Companies engaged in carrying passengers on cars along a public street are not understood as engaging to make — 147 — safe landing places, but to select them. The duty is to' select such place with reference to getting off' whilst the car is at rest. The company is not responsible for peril which the passenger incurs without its fault in attempting to alight after the stoppage has terminated and the car has again been put in motion, provided a reasonable time for alighting was allowed while it was at rest. This is true more especially, if the conductor did not know that the particular passenger intended to get off at that place and did not see him attempting to get off in time to warn or prevent him from so doing whilst the car was in motion. The charge that “ a carrier of passengers is legally bound not only to safely transport, but to furnish the means of safe egress from the trains and passage therefrom,” was not applicable to the facts. There was no question about furnishing the means of safe egress, but the complaint was that the passenger was permitted to use unsafe means, and in so doing was carelessly injured by another car. 11. Of course no duty touching the selection of a safe place for landing passengers is operative on any stop made on account of an obstruction upon the track. When a stop is made for that reason and there is broad daylight by which passengers can see for themselves, if one of them undertakes to get off, whether the car be in motion or at rest, the conductor not seeing him or being aware of his purpose, he cannot complain that a safe place was not selected for him to alight. This, however, would not justify the company in negligently running over him if, by accident, he failed to gain a firm footing on alighting but fell, on a parallel track, exposing himself to danger on that track. 12. The presiding judge did,not hear the improper statements made by counsel in argument, and his attention was not called to them at the time or afterwards during the progress of the trial, and no request was made — 148 — to charge the jury touching the same. To say that a new trial is not required nor would be justified on this ground of the motion, is but to repeat in substance what has been ruled many, many times. 13. In charging the jury touching the measure of recovery the court said: “ In determining the value of fhe life of deceased you consider his age, his expectancy of life, the amount he was earning when killed, his capacity to earn money in the vocations of life in which he was engaged. It is the cash value of the life that is to be given, not the gross amount he would have received during the term of years the tables say he, could reasonably have expected to live. It is the gross amount reduced to present cash value.” This charge was subject to misconstruction. Neither here nor elsewhere was the charge quite full enough as to the right of the jury to avail themselves of facts in the evidence irrespective of the mortality tables. 14. What may be contained in the motion for a new trial which we pass over in silence we deem free from substantial error. This includes the many requests to charge the jury which were denied, and some other topics besides. If the plaintiff’s son had, before he was injured, succeeded in getting a footing upon the street which he could have maintained, his relation as passenger would then have ceased. But we understand the evidence as warranting, the conclusion that he failed to effect a landing upon the street and fell upon the parallel track as the result of his attempt to land and not as a sequence to a landing already accomplished. In Creamer v. Railroad Co., 156 Mass. 320, 52 Am. & Eng. R. Cases, 558, the passenger had safely landed, and when stricken by the car was walking on the street. 15. We can see no objection to allowing a plaintiff to write off from her recovery voluntarily any sum whatever. If by so doing any excess of damages found by — 149 — the verdict is voluntarily relinquished, it would seem that the amount of the verdict would no longer be a cause for a new trial. "Why should there be a new trial solely for the purpose of reducing the damages, when the plaintiff had voluntarily relinquished all that could be treated as excess? Other grounds for a new trial would, of course, stand unaffected. Judgment reversed.