East Tenn., Va. & Ga. Railway Co. v. Markens , 14 L.R.A. 281 ( 1891 )

Lumpkin, Justice.

1. While a judge is forbidden to express or intimate his opinion concerning a question of fact about which there is any doubt whatever, he may with propriety say to the juz’y that there is no evidence to support an alleged fact, when such statement is unquestionably true. The object of section 3248 of the code is to prevent judges from interfering with the functions of juries in' determining contested issues of fact when there is proof on both sides ; but when an alleged fact is entirely unsupported by evidence, the judge may aid the jury by so informing them, thus relieving them of that much difficulty in reaching a correct conclusion in the case.

2, 3. Whatever the law formerly may have been, it is now well settled that the propositions contained in the charge of the court below quoted in the second headnote are correct and sound. So well are we convinced of this, we deem an elaborate discussion of the questions involved unnecessary. In the American & English En-cyclopaedia of Law, vol. 4, p. 83, we find the following : “It is now the rule in the United States courts, in England, and in most of the States of the United States, that the' contributory negligence of a carrier is not attributable to a passenger.” In volume 16, p. 447, of the same work, it is stated that: “There can be no such thing as imputable negligence, except in cases where that privity which exists in law between master and servant and principal and agent is found. In order for the negligence of one person' to be properly imputable to another, the one to whom it is imputed must stand in such a relation of privity to the negligent person that the maxim quifacit per aliurn facit per se.is directly applicable. It follows that all the cases in which the negligence of one person has been imputed to another in the absence of just this relation of privity are wrongly decided, and such is the effect of overwhelming recent cases.” See, also, Flaherty v. Northern Pa. Ry. Co. (Minn.), 40 N. W. Rep. 160; Becke v. Mo. Pa. Ry. Co., 106 Mo. 544; Little v. Hackett, 116 U. S. 366, and authorities cited therein. And particularly, see note by reporter (Irving Browne) to case of Borough of Carlisle v. Brisbane, 57 Am. Rep. 488 to 511, inclusive, which treats of the subject in a most comprehensive manner; also, the following text-books: Deering on Negl. §27; 1 Shear. & Redf. on Negl. (4th eel.) §66; Whit.. Smith on Negl. 405-407; Beach on Contrib. Negl. §§32-36; 1 Thomp. on Negl. §38 ; Thomp. on Car. of Pass. 284 et $eq.; Cooley on Torts, 684 ; Addison on Torts, §33 ; Whart. on Negl. §344a. These citations might be multiplied indefinitely, but even a casual examination of those above mentioned will suffice to establish the rule laid down by the court below.

It will also appear from the foregoing authorities, and is entirely consistent with every-day experience, that a female passenger in a public hack may trust that the driver thereof will exercise proper caution and diligence in avoiding collisions with railroad trains or other things which would naturally result in injury to the vehicle or its occupants. If such driver were drunk, plainly incompetent to -manage his team or manifestly reckless, or if for any other reason it was apparent to the passenger that she could not safely rely upon him, probably the duty would be upon her to supervise his conduct, and compel him, if possible, to observe the requirements of ordinary care and prudence in the management of his vehicle, or else, leave the same. No reason why the plaintiff should do either appeared in this case, and we therefore think she was under no obligation to' overlook or undertake to control the driver’s movements, or get out of the hack.

4. Section 708 of the code, relating to the erection of blow-jposts, the blowing of whistles and the* checking of trains in approaching public crossings, was, by the act of 1875 (incorporated in section 710 of the code), modified, so far as cities, towns and villages are concerned, by dispensing with the posts, by substituting the tolling of bells for the blowing of whistles, and by requiring engineers to signal the approach of their trains to public crossings, no matter whether such trains were put in motion, at a distance of four hundred yards from such crossings, or at a point less than that distance. "Wo do not mean to say the act in precise terms makes these changes, but it seems unquestionable that they were intended to be made thereby. In the very nature of things, the legislature could not have intended that the approach of trains to public crossings in towns and cities should be signaled only when the train began to move at a point four hundred yards, or more, distant therefrom. The absolute absurdity of such intention in the legislative mind shows conclusively that it did not exist. The purpose of the act undoubtedly was to protect persons and property on street crossings in towns and cities, and this could not possibly be accomplished if warnings of the approach of trains and locomotives need be given only when they were set in motion nearly a quarter of a mile from any particular street crossing in question. The law meant that in towns and cities, engineers and other persons in control of trains should always be cautious in approaching crossings, and have their powerful machines under such control as in every instance to be able to prevent collisions in such places. That this court has so regarded and construed the law is evident from its rulings in the following cases : Atlanta & West Point R. R. v. Wyly, 65 Ga. 120; Georgia R. R. v. Carr, 73 Ga. 557; Central R. R. v. Russell, 75 Ga. 810; Western & Atlantic R. R. v. Young, 81 Ga. 417; Georgia Midland & Gulf R. R. v. Evans, 87 Ga. 673, 13 S. E. Rep. 580. Numerous other decisions of this court might be cited, but the above will suffice.

The case of Morgan v. Central R. R., 77 Ga. 788, even if correct in holding that section 708 of the code does not apply to trains operating between points where blow-posts are or should be located, and public crossings, is not applicable here, because in that case the injury did not take place in a city, town' or village, and the case was not, therefore, within the act of 1875 above mentioned.

5. The motion for a new trial contains thirty-five grounds. We have carefully considered all of them, and find that the court did commit some slight errors in its rulings upon questions of minor importance, but none of them are sufficiently serious to authorize or require the granting of a new trial. The controlling questions in the case are those which we have already discussed, and the court having ruled correctly upon these, we are of the Opinion that the judgment below should be, and accordingly it is, • Affirmed.