Southern Railway Co. v. Harden

Atkinson, J. 1. Complaint is made that the court erred in charging the jury section 3906 of the Civil Code, which provides as follows: “In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff.” Special stress is laid upon the proposition that the court should not have given in charge to the jury the concluding clauses of that section, to the effect that they might give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff; and this brings us to consider whether, for a tort committed against a person which involves a mere negligent omission upon the part of a carrier to perform a contract of passenger carriage, whereby a passenger is exposed to inconvenience and other damage,.there being no actual physical invasion of any personal or property right, that portion of the section of the code above referred to, and of which complaint is made, has any application, or whether it should be given in charge to the jury. We think an analysis of the section of the code above quoted will show that it can have no application to the class of cases to which we have above referred. It can not in any just sense be said that a mere negligent omission upon the part of a carrier to stop its train at a given point to which it has undertaken to transport a passenger is a trespass against such passenger. The word “ trespass” embraces only that class of torts which involve a violent, [269] unlawful, physical invasion of one’s right of person or property, and this classification necessarily excludes those acts of one person resulting in injury to another, which arise from a mere omission to perform a duty imposed upon the party bound to perform by the terms of a contract entered into between them. If then the injury complained of consists of a mere omission to perform such u duty, it cannot, in any just sense, be said that the person complained against has committed a trespass upon the person of the other; and if no trespass has been committed, surely the court is not authorized to give in charge a provision of the law which is designed to authorize the imposition of additional damages by way of deterring the wrong-doer from the commission of a trespass only. There are cases of expulsion from railroad-trains which involve not only the breach of the contract of passenger carriage, but likewise the unlawful invasion of the personal rights of the passenger in forcibly expelling him from the train. Such was the case of Head v. Georgia Pacific Railway Company, 79 Ga. 358; and in such a case it is entirely proper for the court to give in charge to the jury, not only that portion of the section of the code above referred to, which authorizes the jury to assess additional damages to deter the wrong-doer from repeating the trespass, but likewise authorizes them to give additional damages as compensation for the wounded feelings of the plaintiff. The facts of the present case, if the testimony of the plaintiff is to be believed (and this we take as true, the jury having found in her favor), make a case of a mere negligent omission properly to perform the contract of passenger carriage, resulting in inconvenience to the passenger, and in personal injuries received by her in attempting to alight from the train. The acts of the defendant were acts of omission only. No trespass, in a legal sense, was committed upon the person of the plaintiff; and we are therefore fully persuaded that the instruction given to the jury by the trial judge, which is above criticised, was entirely unwarranted by the evidence. 2. Other than as above indicated, no error of law appears to have been committed upon the trial; but the error above complained of bears directly upon the pivotal question in the case, [270] and we are, therefore, constrained to direct that the case be again tried. Judgment reversed. All the Justices concurring.