City & Suburban Railway v. Findley , 76 Ga. 311 ( 1886 )

Jackson, Chief Justice.

Findley sued the City and Suburban Railway Company for injuries occasioned by the negligence of its servants in running the car, he being a passenger thereon. The jury gave him a verdict for $1,500.00, andón a motion for a new trial being denied, the Railway Company assigns error on the several grounds taken in its motion.

1. The first, second and third grounds proceed upon the averments that the verdict is contrary to the evidence and to law.

On a very careful reading of all the evidence in the record, we are very clear that the verdict is supported overwhelmingly by the evidence, if indeed.it be not demanded by it. The plaintiff swears positively to the manner in which he was hurt. ■ As he stepped off the car, with one foot on the ground and the other on the steps of the car, the driver drove off, which gave him a jerk, threw him on the ground and dislocated his hip, broke his leg right thereto use his own language. The man who helped him up, living or doing business near by,, heard his exclamation, “ I am hurt,” and went to his help and took him into his shop. He saw where he was hurt, right where he landed .from the car, but did not see how it was done. The fact that he was laid up many months in the hospital, sunered much, is permanently disabled and incapacitated for hi? •calling and business, is overwhelmingly proved.

The only evidence to the contrary, that he was hurt by the negligence of the driver, is that of the driver, and it is very unsatisfactory. He knew nothing at all about the disaster. His habit, he says, was to stop till all got off, and on this occasion, on that night, he did so ; he adds, after stating that he knew nothing about the hurt of a passenger right at the car, though a man in his shop or store heard his exclamation of distress. Central Railroad v. Sanderg, 73 Ga., 513.

When it is considered that extraordinary diligence is that required of the carrier of passengers, as well on a street oar as on regular cars propelled by steam from city to city; that when one is hurt by reason of its carriage, the presumption is always against the carrier; and that the only evidence of having used even ordinary care in landing his passenger is from the driver (whose business it was, there being no conductor, to see his passenger safely landed before he started, after stopping to let him land), who testifies that he did not know of the hurt of the passenger at all, though the evidence is certain that he was there hurt, but that his habit was to stop till all got off, and that he did so that night. How can it be said that the verdict is not supported by evidence enough for it to rest upon ? Doubtless the driver may have thought he saw all off, but he did not leave his post a moment; he evidently looked back in the car and saw nobody there, and thinking that all were landed^ started the horse, and the man was crippled.

This is the truth, and it reconciles aji the evidence. When the driver looked back, the plaintiff was on the step with one foot, and on the ground with the other, and the driver did not see him, and hence did not know even that he fell there and was hurt there. Is this extraordinary diligence? Was not the driver slightly neglectful? It seems so to us, as it seemed from the charge of the presiding judge, we gather, to him, to be much more than slight neglect, to-wit, the higher degree of ordinary neglect. See Code, §§2061, 2062.

That a carrier is bound to extraordinary diligence in carrying passengers, and that slight neglect only fixes responsibility upon them, see Code, §2067; and that this rule applies 1 o street railway carriers, see Holly vs. The Atlanta Street Railroad, 61 Ga., 215.

Therefore this verdict is supported by the evidence and sustained by the law.

2. The deposition on which the company relies as newly discovered evidence as the basis for a new trial is overwhelmingly disproved by many counter-affidavits, and besides, goes to the impeachment of the plaintiff as a witness. Possibly the latter might not be sufficient to destroy its force, ás it is the sayings of the party that the affiant narrates, but the fact'that it is disproved by facts beyond doubt, sworn to by many affiants, does - utterly annul its force. Wallace vs. The State, 70 Ga., 722.

3. The presiding judge has the right to state to the jury the several contentions of the parties. Indeed, it is his duty to do so. The only restriction upon it is that he state them fairly to each side. He may sum up the evidence, being careful to withhold any expression or intimation of an opinion of its truth, with a view the better to state those contentions practically so as to be readily comprehended by the jury. These issues seem to us to have been fairly put to the jury, considered as a whole. They embrace many sentences and long paragraphs, some of which might perhaps be criticized if segregated, but in case any portion were assailed as erroneous, the rule is that such error should be specified, which is.not done here.' Therefore, the first and second grounds of the amended motion were properly overruled, and cannot work a new trial here.

4. Error is assigned upon this charge, “ All actions of this sort necessarily imply fault somewhere.” Taking this extract from the charge by itself, and it might be objection¿ble as excluding the..idea of a mere accident. If there were any testimony at all that it was .a mere accident, it .would be. But in connection with the context, it does no harm. The judge was upon rebuttal of negligence. The paragraph above that excepted to is, after stating what 'would rebut this presumption, “ the presumption of negligence will be rebutted.” Then follows, “ All actions of -‘this'sort imply negligence somewhere. If -the railway company is without fault, then the railway company can-mot be held responsible. If the railway compah3r js, at -fault, if it did not exercise all reasonable and ordinary •care and diligence, then the railway company should be ■made to pay damages, unless you should find that the -’plaintiff, by .the use of ordinary and reasonable care and -diligence on his part, could have avoided the accident:” iSo that the mind of the judge was On the presumption of '.fault in the company-by the statute in all these cases— actions of this sort, and how that presumption could be 'rebutted by ■ showing fault in the plaintiff. Somewhere it •:znus’t be; lor the law puts it, fixes it, on the company, (until it shows no fault in itself'or fault in the plaintiff;

5. The 4th, 5th, 6th and 7th grounds all relate to the -charge on damages. It is to the effect that they should (not be punitive or vindictive, nothing to punish or warn -the company, but such damages as the jury believe would (compensate the plaintiff for the. expense and suffering, ■physical and mental, for his present condition and decreased capacity to earn a living; that they should pay (him such as they believe would compensate him of course •'.for what is said above; and that the law permits nobody "else, to measure damages but themselves; and that if by treason of-the1 negligence of the company in this matter (plaintiff was hurt, such damages should be -given. We see not.hiiig to hurt the company in the charge to this ".effect. In connection'with all the charge, and read in the (light of the rest of it, it is good law and certainly not. hurtful to .the company..: The charge is favorable to it all the -way through, and-erroneous as against .the .plaintifi-on the Question of. diligence towards a passenger. ... The ¡damages are reasonable and the .result- proper and legal.- .- .- ..

Judgment;affirmed.- - . . . ......