Georgia Railway & Electric Co. v. Reeves

Lumpkin, J. (After stating the facts.) 1. It was contended that the amendment, alleging that while the plaintiff was stepping from one car to the other the defendant negligently caused the car to jerk suddenly, added a new cause of action. This ground of exception is not well taken. The action being based on the allegation that while a passenger, at the direction of the conductor, was passing from one car to another, she was injured by the negligent conduct of the defendant’s agents and servants in, connection therewith, an amendment which alleged an additional act of negligence in the same transaction did not set out a newi — 702 — and distinct cause of action. City of Columbus v. Anglin, 120 Ga. 785; Harris v. Central Railroad Co., 78 Ga. 525; Ellison v. Georgia Railroad Co., 87 Ga. 699; Civil Code, §5098. 2. The bill of exceptions pendente lite assigns error in allowing this amendment, on the ground that it “does not connect the alleged negligence with the defendant.” It distinctly alleges '“ that said jerk of said car was caused by the defendant’s servants and agents in charge of said car.” 3. It was further objected that the amendment did not show in what way the defendant caused said alleged negligence.. It was not necessary that the plaintiff should ascertain and allege the particular methods by which the defendant’s employees produced a sudden jerk while she was leaving the car. Where a car is at rest, and a passenger is lawfully leaving it or passing from it to another car under the order or at the request of its conductor, if a sudden and negligent jerk or movement is caused by the company’s agents, resulting in injury to the passenger, it is not incumbent on the passenger to allege the specific manner in which it was produced. It would be an unreasonable burden to place upon her to require that she should allege and prove whether the motorman turned on the current or turned off the brake, or by what method of handling the complex machinery connected with a car propelled by electricity the jerk was produced. The allegation of the amendment on this subject • was sufficient. 4. Objection was further made on the ground that the amendment does not show in what manner the alleged negligence contributed to or caused any injury to the plaintiff. If this amendment stated a new count which should be complete in itself, or if it alleged some act of negligence disconnected from the transaction set forth in the declaration, by reason of which negligence injury to the plaintiff was alleged, the point, would be well taken. But we think that under the allegations of the declaration, which show that she was a passenger on defendant’s car, that under order of the conductor she was leaving that car and undertaking to step across to another, and that by. reason of negligence on the part of the defendant’s agents in connection with such transfer she fell and received an injury, the addition of another act of negligence in the same connection might fairly be construed — 703 — with the whole declaration as being one of the causes which produced the injury. Taking the amendment, therefore, in connection with the original declaration, while it might have been more explicit, we do nSt think that it was amenable to this objection. 5, 6. Complaint is made that after the plaintiff closed her evidence, wherein the scene of the injury was located at a point 350 or 400 yards distant from that alleged in the declaration, a motion for a nonsuit was made, and thereupon an amendment was allowed making the declaration conform to the evidence of the plaintiff. It is urged that this set forth a new cause of action. This objection was not well founded. The mere correction of an allegation as to the exact location of an occurrence on the line of a railroad, so as to allege that it in fact occurred a few hundred yards distant from the point alleged in the original declaration, •does not add a new and distinct cause of action. ■ It is the same cause of action, nor does it become a new and distinct cause by merely shifting the scene of the occurrence a short distance along the line of the railroad. By doing so there was no difference in the law applicable, or in the evidence necessary to support the substantial grounds of the plaintiff’s contention. Even if there had been error in the allowance of this amendment, it could furnish no ground for reversal, because at a later stage of the trial the amendment was withdrawn, and the original allegation restored, the defendant’s evidence showing that the occurrence took place at the point alleged in the original declaration. 7. Error is assigned because the court overruled the motion for a nonsuit. If the motion rested on the variance between the allegata and probata with reference to the place at which the injury occurred, the making of an amendment which caused the former to conform to the latter destroyed the right to a nonsuit, if it existed. If, however, we should consider the case as if the amendment which was afterwards withdrawn had not been made, and that there was an error at the time when the motion was made in not granting the nonsuit, yet, if the evidence afterwards introduced supplied the deficiency, no reversal will be granted on that ..ground. Here the evidence of the defendant clearly showed that the occurrence transpired at Hurt street, the place alleged in the -declaration. 8. The motion for a new trial assigns error in the following — 704 — charge: “ Now, in this investigation, gentlemen, if the plaintiff makes it appear to -you from the evidence in the case that she was injured in the manner that she sets forth in her declaration, the law would presume then that the defendant was negligent, and the burden would be cast upon the defendant to show to you either that it was not negligent, or else the injury to the plaintiff, if she was injured, was due to accident and not caused by the defendant’s negligence, or else that the plaintiff by ordinary care on her part could have avoided the consequences to herself of the defendant’s negligence, if that is shown. If the defendant makes either of these propositions appear, that would be a reply to the presumption and make a complete defense to the action.” The grounds of complaint in respect to this charge are: that it was without basis in the evidence; that the charge as to the presumption of negligence was not adapted to the evidence; that there was no evidence to show that the plaintiff was injured by the running of a locomotive or cars or other machinery of the defendant, or by any person in its employment; that the case was not. one to which the statutory presumption against railroads was. applicable; and that the charge raised a general presumption of negligence against the defendant, whereas, if any presumption arose at all, the court should have limited it to the specifications of negligence submitted to the jury. The evidence furnished ample basis for this charge. The judge excluded from the consideration of the jury all the specifications of negligence except-two, causing the light to go out and causing the sudden jerk; and while he did not, in immediate connection with the charge complained of, inform the jury that the presumption of negligence-arising against the defendant would be limited to the specifications of negligence submitted to them, the general charge contained in the record shows that he did do this several times. At. one point in the charge he instructed the jury : “ Your investigation of the case.on the question of whether defendants were negligent or not negligent will be- confined to these two specifications, and you would not be authorized to go outside and inquire, whether the defendant was or was not negligent in some or any other way than that set forth in these two specifications of negligence which will be submitted to you.” At another time he said:- “ Your method of inquiry, confining yourselves to these two spec — 705 — ifications to which I have called your attention,” etc. And in several other portions of the charge he emphasized the fact that the consideration of the jury was confined to these specifications. Under the entire charge, the jury could not have understood that the judge referred to a presumption of negligence in respect to other matters which he had expressly excluded from their consideration. 9. It is urged that, if the injury occurred as alleged and proved by the plaintiff, this was not a case in which the statutory presumption of negligence arises. The Civil Code, § 2321, declares : “ A railroad company shall be liable for any damage done to persons, stock, or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” The argument is, that, inasmuch as the car was standing still when the passengers were directed to leave It and go to another car, the injury was not done by the running of the car, or by any person in the employment and service of the company. This argument' would be sound if made in regard to an injury which was entirely disconnected from the running of a car, or which was not produced by some direct act of a person in the employment of the company. And such was the ruling in Ga. R. Co. v. Nelms, 83 Ga. 70; Savannah Ry. Co. v. Flaherty, 110 Ga. 335. But it would be too narrow and restricted a. view to hold that if while passengers are in transit upon a car it was stopped for one or more of them to alight, or to be transferred to another car, and the injury resulted to one of them by reason of turning out the lights in the car, or causing it to jerk while the passenger was alighting, this was not done by the running of the ear, or by a person in the service of the company, if such person put out the light or caused the jerk. Such an occurrence would be a part of the actual transit. The running of the car, as used in the section of the code above quoted, is not confined to a mere collision with a person on the track. An unnecessary jerk causing an injury to a passenger while alighting is a part of the running, within the reason and spirit of the statute. — 706 — Moreover, if while the passenger is in the act of alighting an employee of the company- turns out the lights or causes the car to jerk, and as a result the passenger is injured, this would be damage done by a person in the employment and service of the company, within, the meaning of the statute. 10. There were numerous other grounds of the motion for a new trial, alleging errors on the part of the court in stating the contentions of the defendant, and in various charges and refusals to charge, and omissions to charge. A careful consideration of all of them in connection with the evidence and the charge given convinces us that none of them are well taken. The verdict is supported by the evidence. Judgment affirmed. All the Justices concur, except Simmons, O. J., absent.