Savannah, Florida & Western Railway Co. v. Flannagan , 82 Ga. 579 ( 1889 )

Bleckley, Chief Justice.

The record makes the following questions on the admissibility of testimony ¡Was it competent to show that the engine which ran over the deceased was supplied with a hand-brake only, and that most or all other engines of the company had air-brakes? "Was it admissible to show the speed of the engine while on the company’s property and approaching the street where the accident occurred? Was it admissible to show the habitual high speed of the same engine when run by the same engineer, for some time previously, at the same place where the accident occurred ? Was it admissible to show that after the accident the engines of the company ran more slowly at that place? Was it admissible to show the habit of the engineer whilst running the same engine previously at the same place, not to ring the bell? Was it admissible to prove what the company’s master-machinist had testified to on a previous trial ? Was it admissible to prove that the deceased did not have expensive or extravagant habits; that he got less benefit from his wages than his wife derived from them; that her clothes and medical attention cost more than his; that she was sick very often, etc.?

1. The objection to the evidence touching brakes was, that it was irrelevant, because no foundation for it was laid in the declaration. The declaration alleged that the engine was old and worn out, with brakes in bad condition, and not supplied .with proper brakes. This, we think, was a sufficient basis for the evidence in question.

2. The speed of the train in approaching the place of accident, although at the time the speed was noticed by the witness the train was not upon the street but upon the company’s property, was not wholly irrelevant. The distance from the scene of the accident was not very considerable, and the engine was then upon the same journey which in its further progress resulted in the homicide. There is some little presumption that the speed of a train, when once shown, continues to be the same for a short distance at least, until a change of speed appears from the testimony ; and we do not know that this presumption is varied by the fact that the train passed in the meantime from the company’s property to the street. As trains do not run alone, but have one or more persons upon them, it is generally in the power of the company to show a change of speed, if any in fact took place.

3. The habitual high speed of this same engine, when run previously by the same engineer on the same street, was of doubtful admissibility. The authorities upon the question conflict. Eor the affirmative might be cited: State vs. Boston, etc. R. R., 58 N. H. 410; State vs. Manchester, etc. R. R., 52 N. H. 528; Shaber vs. St. Paul R. R., 28 Minn. 103; Randall vs. Tel. Co., 54 Wisc. 140; Craven vs. Cent. Pac. R. Co., 72 Cal. 345; Henry vs. So. Pac. R. Co., 50 Cal. 176; Sheldon vs. Hudson River R. R., 14 N. Y. 218. Eor the negative, see Gahagan vs. Boston, etc. R. R., 1 Allen, 187; Chicago, etc. R. R. Co. vs. Lee, 60 Ill. 501; Balt. etc. R. R. vs. Woodruff, 4 Md. 242; Parker vs. Portland Pub. Co., 69 Maine, 173. Patterson’s Rwy. Accident Law, 421, throws the weight of his opinion on this side. Upon so doubtful a question we think the court did not err in admitting the evidence. There are several cases in our reports holding that doubtful evidence is to be admitted rather than excluded.

What has been said upon this point applies equally to evidence touching habitual failure to ring the bell.

4. There is much authority to the contrary (see Patterson Rwy. Accd. Law, pp. 421, 422), but we think consistency with our own decisions requires us to hold that it was admissible to show that, after the accident, the engines of the company ran more slowly at the place of the accident than they did previously. The cause of this change of speed was a question for the jury. Augusta etc. R. R. Co. vs. Renz, 55 Ga. 126; Central R. R. vs. Gleason, 69 Ga. 200. The evidence was certainly of very slight value, hut its admissibility did not depend upon what it proved, hut upon its tendency.

5. As the master-machinist of the company was, so far as appears, still in life, and might have been produced as a witness, it was certainly error to admit in evidence against the company what he had testified to on a previous trial of the case. We can find no possible reason for recognizing his declarations, whether made upon oath or not, as admissions by the company. Certainly the trial of an action for an alleged tort is no part of the res gestee of the tort itself, and the general rale is that deelartions of an agent are not to be attributed to the principal, unless they are a part of the res gestee. But this testimony, taken in the light of all the facts of the case, was not of sufficient materiality to require a new trial because of its improper admission.

6. The same may be said touching the admission of evidencé to prove that the deceased did not have expensive or extravagant habits ; that he got less benefit from his wages than his wife derived from them; that her clothes and medical attention cost more than his; that she was sick very often, etc., etc. While some or all of this testimony was perhaps inadmissible, according to the strict rules of law, it did not, under the charge of thé court, so enter into the measure of damages as to prejudice the railway company. And in this respect the present case is distinguishable from Central Railroad vs. Rouse, 77 Ga. 393. In that case the court recognized an estimate made upon what would be required to support the wife and children, as an element in arriving at the amount of damages. No such standard was pointed to in this case.

7. Several exceptions were taken to the charge of the court. The whole charge is set out in the record; and construing it altogether, we think it substantially stated the law of the case on the material points, with fairness to both parties. Some objectionable passages appear; and did they stand alone, unmodified by other passages, they might be held erroneous. We see no good ground for a new trial in anything which the charge contains.

8. The complaint that the judge expressed an opinion upon the facts as to two or three matters, is met by a statement in the charge to the effect that these 'matters were admitted .or conceded. This statement should be taken as true, there being no verified contradiction of it in the bill of exceptions or elsewhere in the record. Brantly vs. Huff, 62 Ga. 532.

9. This case having arisen prior to the act of 1887 forbidding any deduction from the value of the life on account of personal or other necessary expenses of the deceased, the rule.for computing damages laid down in Central Railroad vs. Rouse, 77 Ga. 393, ,was applicable. And not only did the presiding judge give the railway company the full benefit of that rule, but went further and treated luxuries which the deceased was accustomed to enjoy, as being a subject-matter for deduction, the same as necessary expenses. Certainly this was not only fair to the company, but liberal.

10. The instruction requested — that if Elannagan, at the time he received his injuries, was in the employ of the defendant, and if he contributed to the injury by any negligence, his widow cannot recover, — was properly refused; for the reason that Elannagan was not only not on duty as a servant of the company at tne time he was killed, but was not at or near the scene of his duties. He was on the public street of Savannah, and occupied the footing, in every respect, with reference to the running of the company’s trains at that place, of the general mass of the public. We think, therefore, that the rule of contributory negligence applicable to the public under like circumstances, was applicable to him. Nor does this view militate in any degree with the case of Central Railroad vs. Henderson, 69 Ga. 715, or any of the cases therein cited.

11. It is not clear to us that the damages awarded by the jury were excessive, or that the verdict was contrary to evidence or the law. We think the evidence made a somewhat doubtful case for recovery, but the jury and the presiding judge having been, satisfied with it, we see no cause for reversing their decision.

Judgment affirmed.