Higgins v. Cherokee Railroad , 73 Ga. 149 ( 1885 )

Hall, Justice.

1. The 6th, 9th, 15th, 16th and 17th grounds of the motion for a new trial complain that the judge omitted charges upon certain questions involved in this litigation, and which were claimed to be essential to its full consideration. It is no"t shown, however, that his attention was specially called to these questions, or that a fuller or more particular charge on them than that given was requested. Counsel seem to forget that they owe a duty to the court in this respect, and if they fail to perform it, they thereby, as a general rule, estop themselves from excepting on such grounds. Exception is taken to what the court did not charge or decide, rather than to its charges and rulings, and both the motion for a new trial and the bill of exceptions utterly fail to point out in what the error consists. No issue is made by such exception upon which we can pass, as has been repeatedly held. Indeed, the practice in this respect is so well settled that we need do nothing more than mention the rule to secure the ready acquiescence of the profession-, not only to its existence, but its propriety.

2. Various rulings and charges of the court are set forth in the 7th, 8th, 10th, 11th, 12th, 13th and 18th grounds of the motion, and excepted to generally as erroneous, without specifying in what the error consists. Such general exceptions are insufficient. The bill of exceptions must plainly specify not only the decision complained of, but “the error alleged” to exist “therein,” and without a compliance with this requirement, we cannot consider the points, which, for aught that appears from the record, are presented for the first time in tnis court. No argument should be allowed here upon questions thus presented.

3. There was no error in refusing to permit the plaintiff to prove that the defendant was worth the sum of from two to three hundred thousand d'ollars, as set forth in the 4th ground of the motion. We are unable to presume the relevancy of such testimony to any issue made in the case; it had no tendency to illustrate any contested question, and for that reason was incompetent.

4. On one of the leading questions in the case, the negligence imputed to the defendant, testimony of a witness familiar with the management, use and construction of steam locomotive engines “that he never heard of any accident to persons from sparks emitted from the smokestack, either before or since ” the one then under investigation was pertinent and material, as will be shown further on, and the court was right in admitting it. There is, therefore, nothing in the exception set out in.the 19th ground of the motion.

5. The third ground of the motion complains that the defendant’s counsel, in his argument to the jury, discussed questions outside the issues made in the case, and that when plaintiff’s counsel (who does not seem to have offered any objection to his opponent’s course) attempted to reply by following in the same track, he was interrupted and requested by the court to confine himself to the case, with the further remark, “ I cannot permit you to discuss the parties.” The evidence in every case is confined to the issue, and the discussion should not go out of that. Had the court’s attention been called to the transgression of this rule by the defendant’s counsel, we entertain no doubt that a proper reproof would have been administered, and •that he would have been recalled from his wanderings, and ■compelled to confine his remarks to the case. Plaintiff’s counsel, as it seems, did not wish to interpose; he was willing to indulge his adversary, thinking, doubtless, that he would be able to make capital for his client by his reply. The judge’s attention was called to the matter at this point, and he very properly interfered to check remarks which •tended to divert the attention of .the jury from the case, and to induce them to reach a conclusion from considerations foreign to those arising from the facts in proof.

6. We are not aware of any rule or practice that prohibits the discussion of amotion for a non-suit in the presence of tbe jury empanelled in the case. They are sometimes removed, upon the suggestion of either party, or by the court itself, when questions of the admissibility of evidence are to be discussed; this practice stands upon peculiar reasons, not at all applicable to the discussion of' a motion for non-suit. If the motion is granted, the caséis withdrawn from the jury, but if it is denied, the impression which would be- generally made upon their minds would not be unfavorable to the plaintiff. We are unwilling to extend this practice to other cases than the one> in which it has already been permitted. It is, at best, a matter much in the discretion of the court; and without a flagrant abuse of it, we would not feel justified in interfering with its exercise. It follows that the exception to the ruling complained of in the 5th ground of the motion is not well taken.

7. The plaintiff proposed to prove that there was a point ■on defendant’s road over which the train passed on which he was riding, where there was a grade of two hundred .and ninety feet to the mile, and that in ascending it the ■engine emitted steam and cinders in greater quantities :and with much more force than when passing other portions of the road. This evidence was objected to and ruled out, because the declaration did not allege that the ■ defendant had been negligent in constructing this part of its road. The plaintiff then amended his declaration so .as to let in the evidence, when the defendant claimed surprise, and asked that the case be continued; that the continuance be charged to the plaintiff. Therefore the amendment was withdrawn and the case proceeded, the plaintiff insisting that the testimony offered was admissible without it. But the court below was not of that opinion, ;and we agree with him. It was not pertinent to any issue made by the pleadings as they stood, without the amendment; and especially is this true, as there was no allegation or offer to prove that it was a scale or cinder emitted !in this locality that struck the plaintiff’s eye and occasioned the. injury for which the suit was brought. This ■ disposes of (the 14th ground of the motion, and with it of ¡alltthe special grounds set forth therein.

8. While we are strongly inclined to the opinion that >the plaintiff’s evidence made no case entitling him, under ithe law, to a verdict, and that the motion for a non suit should have been sustained, under the rule laid down in Zettler vs. The City of Atlanta, 66 Ga., 195, 196, that it “ should always be awarded where the judge would set aside a verdict, of found for the plaintiff, for the want of sufficient evidence to support the same.” Yet, inasmuch as no cross-bill of exceptions was taken, or other exception made to the decision overruling the motion, we will not decide the question in this case, as well as another made in connection with it, viz: to what extent negligence is a question, both as to the law and-fact involved in it, peculiarly cognizable by the j ury, and as to the power of the judge to charge them as to facts which constitute negligence, or which relieve the party accused from the charge. This much mooted question is not necessarily involved in the final disposition of this case, and need not be further considered.

9. But, be this as it may, we are satisfied that the jury have reached a correct conclusion, and had they found differently, their verdict would have had no foundation to rest on.

The plaintiff was voluntarily on this train by the invitation of the conductor, extended at his own request; he paid no fare, and none was expected from him; he selected the car on which he rode; it was his own choice that he was upon an open flat car, rather than in the passenger coach, — that he was in a position where he was more exposed to accident from sparks and cinders than he would have been had he taken a seat in a closed coach; he rode there for his own special accommodation, and was entitled to look for only such security as that mode of conveyance was reasonably expected to afford. He voluntarily incurred the injury of which he complains, and even if the other party were somewhat at fault, he could not recover damages against it therefor. 19 Ga. R., 445, 446. By the exercise of ordinary care, he could have avoided the consequence to himself, and is therefore entitled to no recom • pense, even if the defendant was negligent. Code, §2972 and citations. This would be true, even if he were regarded as a passenger, entitled to all the rights growing out of that relation. It is doubtful if he was, under the circumstances, a passenger at all in the full legal sense of that termat most, he was so only sub modo, and to a limited extent. The defendant’s engine, according to the weight of evidence, was properly constructed and provided with the best known “ spark-arresterit was in proper order, and if the defendant was injured under the circumstances, the injury is attributable to accident, rather than negligence. 2 Thompson Neg., p. 1234 (7), and citations. A carrier of passengers is not obliged to foresee and provide against casualties which have not been known to occur before, and which may not be reasonably expected. If he has availed himself of the best known and most extensively used safeguards against danger, he has done all that the law requires, and his liability is not to be ascertained by what appeal’s, for the first time after the disaster, to be a proper precaution against its recurrence. Cooley on Torts, note 2, beginning on page 671. and extending on page 672 (the latter portion of note and citations therein), especially 56 N. Y. R., 1; Id., 656; 18 Id., 408; 68 Id., 306, 310, and citations; 84 Id., 455; 50 Cal., 183; 70 Penn., p. 86; Wood’s Mayne Dam., p. 69; 1 Sutherland Dam., 21, 22, 23. If these cases announce correct principles of law, as we think they do, then is the action of the court, in refusing to disturb this verdict, fully vindicated.

Judgment affirmed.