Lyndon v. Georgia Railway & Electric Co.

Russell, J. The plaintiff brought an action against the Georgia Railway & Electric Company to recover damages for an injury which he alleged had been inflicted upon him by a sudden, violent jerk of the defendant company’s street-car, by which the plaintiff in error was thrown violently to the floor and his ankle and instep were severely injured. Thereafter the plaintiff offered an amendment, in which he attempted to set up an additional ground of negligence and certain aggravating circumstances in the act by which he alleged he was injured. The defendant demurred to material portions of the amendment, and the demurrer was sustained. Thereafter, on October 22, 1906, the plaintiff offered a second amendment, which, upon objection thereto by defendant’s counsel, the court refused to allow. The amendment which was tendered and rejected does not seem to have been objected to by special demurrer. We think the court erred in refusing to allow the amendment offered by the plaintiff; for certainly, in so far as paragraphs 2, 3, 4, 5, 6, 7, and 10 are concerned, the stricken portions of the amendment which was filed, as well as the proffered amendment, set up, as a distinct act of negligence, the fact referred to in the original petition, but not then alleged to be negligent, namely, the-overcrowding of the car and the failure to furnish the petitioner a seat. This fact, although an independent breach of public duty, could be alleged as negligence contributing to the injury, and did not set up a new cause of action. Anglin’s case, 120 Ga. 785 (5), (48 S. E. 318). Even if the amendment may be subject in some points to special demurrer, we think that it may be one of the duties of a common carrier, in the exercise of the extraordinary diligence imposed by law, to furnish its passengers with seats, and that such failure to furnish a seat may be alleged as negligence. It has. been held in other jurisdictions that a carrier can not enforce payment of fare from a passenger who has not been provided with a seat; and that the carrier is not authorized to eject the passenger for non-payment of fare until a seat has been provided. It can not be said, as matter of law, that the carrier is exercising extraordinary care for the protection of a female passenger, or of a sick male passenger, who is compelled to stand; and even a strong man may be subjected to severe strain if compelled to stand in a [542] crowded car for a long distance. The increased danger of injury resulting from a sudden jerk, either in the starting or the stoppage of a car, would of course be undeniable. In Texas & Pacific Ry. Co. v. Rea, 27 Tex. Civ. App. 549 (65 S. W. 1117), it is held that “it is the duty of railway companies to provide their passengers with seats while on their trains, and the failure to do so is a breach of the contract of carriage, and subjects them to such damages as proximately result from such breach; but when the passenger can reasonably avoid the aggravation of the damage, it should be done.” And in that case it was held that the wife could recover not only for personal injuries sustained as a passenger, arising from the crowded condition of the train and from being compelled to stand, but also was entitled to additional damages caused by being compelled to hold, while thus standing, a child in her arms. If a common carrier does not fulfil its legal duties until it provides a seat for each passenger; and if, as alleged by petitioner, the crowded ’condition of the defendant company’s cars at certain hours in the early morning and late in the afternoon had existed for years with the knowledge of the defendant, it might afford a circumstance of substance and of aggravation in a case where the injury resulted, or was caused partly, by reason of the fact that the injured party was less able to resist the motion of the ear, and to protect himself from injury while standing, than he would have been had he been seated. Judgment reversed.