Metropolitan Street Railroad v. Johnson , 90 Ga. 500 ( 1892 )

Simmons, Justice.

The action was by Mrs. Johnson against the street railroad company for damages from personal injuries. She obtained a verdict for $1,800, and the defendant made a motion for a new trial, which was overruled, and it excepted.

1-4. The exceptions ruled upon in the first, second, third and fourth head-notes do not require further discussion.

5. The injuries were caused by the plaintiff’s being run into by an engine of the street railroad company while she was crossing its track in the city of Atlanta. According to her testimony she had gotten off the car when it stopped opposite a tank, and had walked on beyond that point along Fair street and upon the sidewalk which ran parallel to the track, a distance of nearly two blocks before reaching the point at which she was injured. This point was at the intersection of Fair street and the Boulevard. She testified that when she had gone about half the distance between the tank and the corner of these streets, she turned and looked behind her to see if the engine and car were coming, and upon reaching the corner and as she left the sidewalk to go to the opposite side of Fair street, she again turned and looked, and although she had a clear view and could have seen the engine from that point to the tank and beyond, she did not see or hear it approaching, so continued on her way, going diagonally towards the track; she was not aware of the approach of the engine until it struck her. The track was in the middle of the street, and the width of the street from one sidewalk to the other was forty feet. If we accept her account of the occurrence, the engine and car must have run nearly two blocks without her seeing or hearing it, while she was walking a distance of about twenty feet. There was evidence that from the point where she was hurt an engine on the track could be seen for a distance of about three hundred or three hundred and fifty yards. It was in the daytime, about eleven or twelve o’clock. It does not appear that she was afflicted with any defect of sight or hearing, and her failure to see the engine, if she looked, could only be accounted for upon the supposition that it traveled the distance stated while she was walking from the sidewalk to the track. One of her witnesses testified that when he saw the engine it was running at the rate of about ten miles an hour, but he does not say that this was its speed at the point where the plaintiff was struck; the rest of her witnesses who testified as to the speed, stated that the engine was run7 ning a little faster than a mule could trot'. The engineer testified that at first the engine was rolling down the hill towards the crossing at from ten to twelve miles an hour, but that about fifty or sixty yards before reaching the crossing he put on the brakes and reduced the speed to four or six miles an hour, and began ringing the gong and continued ringing it until the plaintiff was struck; that he did not see her go upon the track, his view being obstructed by the cab, and that when he saw her last before the engine struck her, she was approaching the direction of the track and was within ten or twelve feet of it. The conductor and fireman testified to a speed of from three or four to five or six miles an hour, and that the gong was rung as stated by the engineer, and the fireman also said that he holloaed repeatedly to the plaintiff to stop. Other witnesses did not hear the gong.

It seems clear from this testimony that if the plaintiff had looked, as she claims to have done, she would have seen the engine; and if she did see it, it is equally clear that she could have avoided the injury. If by the exercise of ordinary care and diligence she could have avoided it, she would not be entitled to recover, notwithstanding the defendant may have been negligent; certainly not if the negligence was not so gross as to amount to wilful and wanton disregard of human life. It may be that the jury acted upon the theory that her recollection was at fault and that she did not in fact look and listen. In either view of the matter it was a vital question in the case whether she' exercised due care under the circumstances. It was important that the jury should be instructed fully and explicitly upon the law applicable to these circumstances, and it was the duty of the court to give in charge any specific instructions requested by the parties which were legal and adjusted to the circumstances and which might materially aid the jury in arriving at a correct conclusion. Such, we think, was the character of the following charge requested by the defendant: “ The precise thing which every person is bound to do before stepping upon a railroad track, is that which every prudent man would do under like circumstances. If prudent men wouldlook and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means.” The trial judge, however, refused to give this charge as requested, stating that in this form it was misleading, and hence was not given in the language requested, “ but in other language deemed by the court not misleading in character.” The language of the request is taken from the decision of this court iu Richmond & Danville R. Co. v. Howard, 79 Ga. 53, and in our opinion is not only a correct statement of law in the abstract, but was pertinent and adjusted to the case in hand. From further explanations in the note of the trial judge, it appears that he misapprehended its bearing upon the question of damages for contributory negligence. The charge requested'does not bar the recovery of such damages, but says in effect that if prudent men would look and listen, and the plaintiff failed to do so, she must take the consequences of her neglect in so far as she could have avoided the same by the exercise of ordinary diligence. Though in principle and in more general and abstract terms this charge may have been covered by other instructions given by the court, we are nevertheless of the opinion that it should have been given as requested, and that the refusal of the request was error. To this effect see Thompson v. Thompson, 77 Ga. 692(2), 697, where the refusal of the request was held to be ground for a new trial. The misapprehension of the judge as to the legal effect of the request, distinguishes the present case from that of Holdridge v. Cubbedge, 71 Ga. 254, and other like cases which hold that the failure to give a special request is not error when the matter of the request is covered by the general charge.

The evidence in this record, to say the least, makes a very doubtful case for recovery. "Upon the question of the plaintiff’s diligence the case bears some resemblance to that of Atlanta & West Point R. Co. v. Loftin, 86 Ga. 48, where the judgment was reversed and a new trial awarded by this court. We deem it unnecessary, however, in this case to make any distinct ruling as to the sufficiency of the evidence. It is enough to say that the refusal to charge here complained of, taken in connection with the case as presented by the evidence, entitles the plaintiff in error to a new trial.

7. Although it is the duty of the trial judge, whether so requested or not, to check improper remarks of counsel to the jury, and to seek, by proper instructions to the jury, to remove any prejudicial effect they may be calculated to have against the opposite party, a verdict will not be set aside because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection be made at the trial. A party will not be permitted to .sit by and allow such conduct to proceed without objection and without calling the attention of the court to it, and after verdict take advantage of it as ground for a new trial. It is as much his duty to object to improper argument as it is to object to improper evidence, and in the former case as well as m the latter, if he permits it without objection, he cannot demand a new trial on the ground that the jury may have been affected by it. If the remarks are considered so far prejudicial that their effect upon the jury cannot be counteracted, the party aggrieved may request that the case be withdrawn from the jury and a mistrial declared. It is generally within the discretion of the court to grant this request, or if the misconduct is not so> gross, in the opinion of the court, as to require a mistrial, to rebuke counsel and forbid him to persist therein, and to instruct the jury not to allow the same to have any effect against the opposite party. If objection be made and a continuance asked for and refused, the refusal would be subject-matter for review on a writ of error after the final termination of the case. On this subject see 1 Thompson on Trials, §957 et seq.; Edwards v. State, 90 Ga. 143, 15 S. E. Rep. 744; Ozburn v. State, 87 Ga. 182(5); Washington v. State, Id. 15(3), and cases cited. In the present case it does not appear that there was any objection at the trial, and the court, in its charge chai’acterized' the remarks as improper and instructed the jury to disregard them.

6. The reasonableness or unreasonableness of a city ordinance regulating the speed of engines or cars on the streets, is a question of law for the court, and is not a question for the jury, unless it depends upon the existence of particular facts which are disputed. Such an ordinance may be reasonable as applied to one locality, and unreasonable as applied to another. Although it may be reasonable as to populous parts of a city, it may not be so with reference to uninhabited districts near the corporate limits. If the nature of the locality is a matter of dispute, the court should furnish the jury with the test by which the reasonableness of the ordinance as applied to the particular locality is to be determined, instructing them as to the conditions under which it would apply and those under which it would not; and it would be for the jury to say whether or not the ordinance was reasonable and applicable, according as they might find these conditions to exist or not. Central R. Co. v. Brunswick & Western R. Co., 87 Ga. 392, and cases cited; Horr & Bemis, Mun. Pol. Ord. §§239, 145. The expression in Young v. Western & Atlantic R. Co., 81 Ga. 418, to the effect that the court below ought perhaps to have left it to the jury to say whether the ordinance was reasonable, instead of assuming its legality and charging them upon that assumption, was merely an incidental suggestion, no direct question having been made which would call for a ruling on this point. In the present case the court charged that it was for the jury to decide upon the validity of the ordinance, yet no issue of fact had arisen which would require the submission to them of the question of its reasonableness or unreasonableness in its application to the locality in which the injury took place. This we hold to be error. The error, however, was harmless, because, under the facts in the record, the conclusion of the judge as to the validity of the ordinance must have been the same as that involved in the finding of the jury, so far as their finding may be considered as having decided that question. Under the evidence there could be no doubt of its reasonableness as applied to the particular locality.

8. It was complained, tliat tbe court erred in charging as follows: “A physical injury which impairs the capacity of a married woman to labor is classified by the law with pain and suffering. It is not to be measured by pecuniary earnings, for such earnings as a general rule belong to the husband, and the right of action for their loss is in him, but the wife herself has such an interest in her working capacity as that she can recover something, in a proper case, for its impairment or destruction, and what she is to be allowed ought to be more or less, according to the nature of the injury and the length of time during which the pain and deprivation is going to continue. Under such circumstances there is no known rule of law by which witnesses can give you the amount in dollars and cents as to the amount of the injury, but this is left-to the enlightened consciences of an impartial jury.” Under the ruling of this court in Atlanta Street R. Co. v. Jacobs, 88 Ga. 647, we think these instructions were proper.

9. The instructions of the court in recharging the jury were the same as those passed upon in Parker v. Railway Co., 83 Ga. 539. Judgment reversed.