Macon & Western Railroad v. Johnson , 38 Ga. 409 ( 1868 )

McCay, J.

This case comes before the Court on a double bill of exceptions. The verdict was for the plaintiff. The defendant moves for a new trial, on the ground, first, of error in the Court in admitting and in excluding testimony, but mainly on the ground that the Court erred in his charge to the jury as to the measure of damages, and on the ground that the verdict of the jury was contrary to the evidence.

The plaintiff moves for a new trial on several minor grounds, but mainly on the ground that the Court erred in charging the jury, (this being a suit against a railroad company for the homicide of a passenger,) that the plaintiff could not recover if her husband, by the exercise of ordinary care, could have avoided the consequences to himself of the defendant’s negligence.

1. It. is true that there is a' special title in the Code, sections 2978 to 2985, concerning damages by railroads, and that there are several more stringent rules provided against railroad companies, regulating their liability for damages, than are provided against individuals. We do not, however, see any reason why the general principles contained in sections 2917 to 2921, should not apply to physical injuries by railroads. Indeed, it is from section 2920 that the plaintiff in this case gets her right to recover at all. The rule, section 2921, “ If the plaintiff, by ordinary care, could have avoided the injury to himself, caused by the defendant’s negligence, he cannot recover at all,” applies, in our opinion, to all cases, and it is a wise and just rule.

The man who neglects ordinary care to avoid an injury, has no just right to seek redress, if that injury is produced by the negligence of another, and we see nothing in the character of a railroad company which should subject it to damages for an injury caused by the neglect of its agents, where the person injured might, by the exercise of ordinary care, have avoided the consequences to himself. It is objected that this is a harsh rule, and it is even contended, that, though in the Code, it is not law, because beyond, the power of the compilers, who were not authorized to make- law. If. is sufficient for this, to say, that both the Constitutions of 1865 and 1868 adopt the Code, and it is not worth while to discuss the extent of the powers of the compilers. Nor is this rule less hard upon the defendant than was the common law. Mr. Pearce, American Railroad Law, 272, announces it as a general principle of the common law, “That the rule resulting from all the authorities is, that a party suffering injury by a collision, cannot recover if he was himself chargeable with a want of ordinary care, and thereby contributed to the injury. And in Laing vs. Colder, 8th Barr, it was decided, “ That the company is not chargeable for an injury to a passenger which would not have occurred ,but for his own negligence, or to which his own negligence substantially contributed, notwithstanding, the company itself is chargeable with a breach of duty.”

Our own Courts, previously to the Code, had substantially adopted the same rule, and in 19 Ga. R., 440, this Court, in effect, announces the rule as it exists in this section of the Code.

Our Code, sec. 2970, requires a railroad company to prove, affirmatively, diligence on its part, and declares that the presumption is, in all cases, against the company. It also provides, sec. 2980, that “ if the complainant and the- agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury, in proportion to the amount of default attributable to each of the parties.”

The common law rule was, that however negligent the defendant may have been, yet, if the negligence of the plaintiff contributed to the injury of the plaintiffj he was without remedy. Sedgwick on Damages, 468.

There could be at common law no apportionment of damages. See cases cited, Pierce on Am. R. R. Law, 272-275; Angel on Carriers, 642. A wrong-doer himselfj who has contributed to an injury sustained, can not ask for redress. 8 Man., and Gran & Scott, 114.

2. Our Code, however, in the case of railroads, adopts a different rule, and provides, in certain- eases, for an apportionment of the damages according to the fault of both parties. This, as is said by Judge Benning, in 26 Ga., 250, was the English Admiralty rule, and, taken in connection with the rule in sec. 2921 of the Code, is wise and just. As a matter of course, these rules are to be taken together. Mere want of ordinary care, on the part of the plaintiff, will not relieve the defendant, unless he be totally free from fault. Taken together, as we understand the two sections, sec. 2921 and sec. 2980, the rule in Georgia is this: “ If the plaintiff, by the exercise of ordinary care, could have avoided the consequences to himself of the defendant’s negligence, he can not recover at all. But in other cases, (that is, in cases where, by ordinary care, he could not have avoided the consequences of defendant’s negligence,) the circumstance that the plaintiff may have, in some way, contributed to the injury sustained, shall not entirely relieve the defendant, but the damages shall be apportioned according to the amount of default attributable to each. And it seems to us, that the Code thus happily settles a subject upon which there has been some conflict of opinion, and no little display of learning and argument.

3. We have not been able to agree with the Court below as to the rule to be adopted for estimating the damages which the wife has suffered by the homicide of the husband. This is a new question not only in Georgia, but wherever the common law is in force. The right to sue at all, depends upon the statute, and the rights of the parties must turn upon its terms. Our first Act gave the right to sue to the administrator, and enacted that, if the estate was insolvent, one-half the recovery should be paid by him to the wife and children. Act 23d February, 1850. The Act of 1856, declared the right to vest in the wife, if any; if not, in the children, and if none, in the legal representatives.

Under these Acts, we are inclined to think it was the intention of the Legislature to give a remedy for the full value of the deceased’s life. But the Code drops the legal representatives altogether, and gives the right only in case of the homicide of a husband or parent, and only to the widow, or, if none, to the children. Code, sec. 2920. This change in the law is significant. Why is no remedy given, except in case of the death of a husband or parent, and why are the representatives dropped ? Simply, as it seems to us, because it was intended only to give to the wife damages for her loss, or, if no wife, then to the children, for their loss. What, then, is the loss of the wife ? Her legal loss ? It is that which she was, by law, entitled to from her husband, a. reasonable support, according to his condition in life. We are aware that this is but a poor compensation for the loss of a loved one. But would any pecuniary rule meet the actual damages? We trow not, and we do not suppose anything was intended, by the Legislature, but to supply the loss to the wife of her actual legal rights, by the death of her husband. Anything more than this, would set us adrift, without chart or compass. The real value of a life, is incalculable, and its actual money-value is all that can be estimated. But neither the wife nor the children have any legal right in the earnings of the husband or parent, except for a reasonable support, according to his condition in life. He may, it is true, give them more, or, if he dies without disposing of his estate, they will inherit it. But they have, in law, no. pecuniary interest, no legal right in his property, except, as we have said, for a reasonable support, according to his condition in life. This, they have a right to demand, and this, in our judgment, will, upon the whole, best satisfy the peculiar language of the Code, and the history of the legislation in this State on this subject. In estimating the damages, therefore, in a case where the wife is suing for the homicide of her husband, who was without fault, the jury are to inquire what would be a reasonable support for the wife, -according to the circumstances in life of the husband, as they existed at his death, and as they may be reasonably supposed to exist in the future, in view of his character, habits occupation, and prospects in life, and when the annual money-value of that support has been found, to give, as damages, its present worth, according to the expectation of life of the deceased, as ascertained by the mortuary tables of established reputation. This-rule, as we believe, will approach nearly to a means of measuring the actual legal money-value of the life to the wife, though we do not pretend that it will, at all, compensate her for the loss of her husband — that, money, to any amount, cannot do, and it is vain to attempt it.

We have said nothing as to the children, and are free to say that their status, in an action of this kind, has given us much trouble. In the estimate of damages, ought they to be considered? The statute is not clear upon the subject. If the widow recovers, she recovers in her own name, and she holds the recovery in her own right. The children have no claim upon it. She may marry, and thus convey it tó a stranger, or dispose of it at her pleasure. Why should any claim of theirs be considered in a suit by the wife? On the other hand, if there be no widow, the children may sue, and if she die pending her action, the same shall survive to the children. Code, sec. 2920. And it is also true that, by the homicide of the husband, an additional moral, if not legal, duty is cast'upon her for the support, at least, of minor children. In the decision of the Court, at the head of this opinion, we have said nothing about the child or children, believing that, in a suit by the wife, her loss is the only matter for consideration. The statute is very meagre in its provisions. It does not provide full remedies, and we do not feel authorized to extend it beyond its terms. We hope the Legislature may make the law, upon this subject, more precise. • What is so uncertain as children? Does it mean minor children only, or all children ? In a matter of such importance, the law ought to be clear, and as the right here given, is one wholly the.creation of the Legislature, we hope it may be more accurately defined by that body. On principles of justice, the widow and children stand on the same footing; yet, as the right of action is given only to the widow, the recovery will be for her sole' benefit. We do not feel, therefore, that the rights of the children, or the damage to them, where the suit is by the widow, is matter for consideration.

4. An experienced railroad man, who has made the management of cars, engines, etc., his business for years, is as fairly an expert as one skilled in any other art, and his evidence stands upon the same footing. We think, however, that the explanation by Mr. Adams, of the meaning which the railroad companies with which he had been connected attached to the notice that “ passengers must not stand on the platform,” was not proper evidence. The words stand for themselves. Suppose he had undertaken to explain by stating that they meant something more, instead of something less than their plain import. Ought that, too, to be evidence ? The facts of this case show that the platform is not a safe place, even when the car is not in motion. The .old rule is the safe one. Let the words speak for themselves. If the door is opened at all, there is no limit. 1 Greenleaf Ev., sec 280.

5. The precise position of Mr. Johnson, at the moment of the collision, is not positively known. He was found on the ground; he had been on the platform very shortly before. The witnesses stated the facts, where they saw him and where he was found. It is sometimes very difficult to draw the line between what is evidence, as a fact, and what is a conclusion of the witness. Much of what we state as fact, is, in truth, only the conclusion of our minds from very conclusive evidence. The statement that a man remained an hour in a room, may safely be made by one who saw him go in and come out, and who, having good opportunities, failed to see him come out in the mean time, and yet after all it may be, and is, a mere conclusion. We think the opinion of the witness is not evidence. If the witness state the presence of the deceased on the platform, at the moment of the collision, as a fact, and it afterwards appear that this is only his conclusion, from his presence there immediately before and his position afterwards, we think his evidence ought not be excluded. His statement of the fact is weakened, it is true, but it is often very difficult to draw the line, when, in such a matter, fact ends and opinion begins. We do not think there is any danger that the jury should be misled. If his statement is only given as opinion, it is inadmissible.

6. The card was, without doubt, inadmissible. All the parties to it were competent witnesses. It might be used, perhaps, to contradict or qualify the evidence of any witness who signed it, if proper foundation was laid, as in case of other statements, but not as original evidence. We know of no rule that justifies its admission. It is not even the statement of one of the parties to the issue. As a part of the res gestee, it must have been during the occurrence, or so nearly coincident as to be free from all suspicion of after thought. Code,, sec. 3720. This was next day, and after much dispute and crimination, and, as the other evidence shows, against the first impressions of the passengers.

7. The liability of a common carrier, for injury to a passenger, is somewhat different from his liability for goods. The latter he stores away at his own discretion, the former is a sentient being, and has certain duties of his own to perform. The company may make reasonable rules to regulate the conduct of its passengers, and it is the duty of passengers to comply with those rules. Code, 2043. More especially is this true, when the rule is for the passenger’s own safety. The platform, as is plain to the meanest capacity, is not made to stand upon. The company provides seats, and a shelter for its passengers, and the platform is, as to them, but the passway to their proper place; and it is a reasonable and proper rule, which the company may prescribe, that passengers should not stand upon the platform. It is a rule for the railroad’s own convenience; passengers are in the way, a hindrance to the proper management of the train, in that position. It is also true, that it is a place of danger. Whilst the cars are running it is emphatically so, but even when the cars are not in motion, it is an unsafe place.

8. The evidence of the notice was very strong; sufficient to cast the onus of want of knowledge on the plaintiff. Indeed, at this day, considering the familiarity of all classes-with railroads, and' the evidence which the very nature of the case offers, it would seem that, prima facie, every person ought to know that the platform is not a passenger’s place, except to pass over. Suppose one were to stand on the steps, or mount the railing, or get on the top of the car, would not the presumption be against him ?

We cannot-but think that the jury in this case have not given due consideration to the negligence of the deceased. The evidence is conclusive that he was on the platform, and that his position was, in fact, the occasion of his death. There is evidence, too, that he was warned by one of the company’s employees of the impending danger, in time to have avoided the consequences; others did avoid it, under the same warning. We are not disposed, however, to hold a man, under such circumstances, to the same coolness and wisdom of action as after the event, and as calm spectators, we may think we would have made use of. Something, perhaps much, must be allowed for alarm and confusion and temperament. We do not, therefore, hold that, under the evidence, it is clear he could have avoided, by ordinary care, the consequences of the defendant’s negligence.. We do think, however, that though the company was at fault, the deceased was also very careless, nay reckless. He had no business on the platform, it was a place of danger, and always is. It was known to him that a train was coming. He was warned by several of the danger, and ordered by one of the company’s employees to get off, as danger was imminent.

9. After the warning, and after he heard the coming train, a passenger went into the car, got his valise, came out, again warned the deceased, got off the train, went to the side of the track, saw the coming train, and again, in a loud voice, gave warning; and yet, deceased, foolishly or recklessly, stood his ground. It is, too, a significant fact, that he had been drinking, and was on the platform, with his hat off. We think both parties were at fault, and, under sec. 2980 of the Code, the damages ought to be diminished by the jury,, in proportion to the fault of each.. We do not think the jury has done this. We would not measure their verdict with accuracy. The jury are the judges of the facts, and it is only when they are so wide of the mark as to indicate passion, mistake, or some error, based upon misunderstanding of law, that a court ought to interfere. We think, in this case, under the evidence, as it is before us in the record, the jury have either mistaken the law, or have acted under the influence of passion, natural, perhaps, in view of the parties, but still, illegal. In view of all the facts, and of the law, as we understand it, we think the verdict is wrong, and the damages, under the evidence, excessive.

Judgment reversed.