Shiver v. Tift , 143 Ga. 791 ( 1915 )

Evans, P. J.

(After stating the foregoing facts.)

1. The case made by the petition was that plaintiff’s husband, while riding in a buggy behind two horses driven by another man, was killed on account of the negligent operation of the locomotive by the defendant’s servants and employees. The occupants of the buggy were driving along a much frequented public thoroughfare, where they had a right to be; and the allegation is distinct that the horses were frightened by the sudden emergence of the locomotive from the alley running across Love Avenue, without warning, and that the horses were frightened both by the sudden appearance of the locomotive within thirty yards in front of them, and by the negligent operation of the locomotive, whereby unnecessary noises were made and unnecessary exhausts of steam were emitted. According to these allegations, the proximate cause of the death of petitioner’s husband was the negligence of the defendant. Georgia Railroad v. Carr, 73 Ga. 557; Hill v. Rome Street R. Co., 101 Ga. 66 (28 S. E. 631). The main allegations of the amendment were an amplification of the allegations in the petition, with the allegation of an additional act of negligence. This does not add a new cause of action. City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318).

2. During the progress of the trial the following question was propounded to a witness: “State whether or not there is anything about that track that would have attracted any one’s attention to the existence of an engine some distance off.” The court was informed that the witness’s answer would be that said track was on a level with the streets and could not be seen by a person approaching it. The court declined to allow this answer. It was pertinent to the inquiry to determine the character of the place where the horses became frightened, as bearing upon the diligence of the respective parties at the time. If the track in the alley was obscured by houses, and was level with the street at the crossing, so as to prevent travelers approaching the track from seeing it, this information should not have been withheld from the jury.

3. A witness was asked whether the horse which was frightened and ran away was a gentle, roadworthy horse, or a nervous, high-strung horse, and he replied that it was a nervous, high-strung horse. The objection was on the ground that this was opinion evidence. Opinions of witnesses not experts are sometimes admissible from necessity, and to prevent a failure of justice, as in questions of identity of persons, handwriting, distances, size, sounds, and the,like. If the facts upon which the opinion is formed can be as well stated and described, they must be, and the jury left to form their own opinion; but where the subject-matter of the inquiry is such as can not be adequately described so as to enable the jury to form an opinion of their own, opinion testimony is permissible. Taylor v. State, 135 Ga. 622 (70 S. E. 237). Testimony of a witness that the horse at the time of the accident did not appear to be frightened, but sulky, was held admissible, within the rule which admits opinions from necessity. Whittier v. Franklin, 46 N. H. 23 (88 Am. D. 185). We think it competent to show, by a witness who had observed the horse, whether he was nervous, high-strung, docile, or ordinarily roadworthy.

4. The court allowed in evidence the application of the defendant to the city council of Tifton for permission to construct railroad tracks across Love Avenue, under such regulations as council might prescribe, and the certified copy of the action of council granting the privilege. The objection urged to this evidence was, that the City of Tifton had no power to grant to an individual authority to operate engines by steam across Love Avenue. It is provided in the 19th section of the charter of the. City of Tifton that the mayor and council shall have authority "to grant rights of way to railroads, street railroads, water and gas works, and electric lights, telegraph and telephone lines, throughout the streets and alleys of said city, upon such terms and conditions and restrictions as said mayor and council may by ordinance prescribe.” Acts 1890-1891, vol. 2, p. 676. This charter power expressly authorizes the city to allow railroads to be constructed across its streets under such conditions and restrictions as the municipality may require. It is applicable to all railroads, whether incorporated or privately owned, so long as such railroads are devoted .to a public use. It is charged in the petition that the defendant, in the operation of the railroad, was a "common carrier of freight and goods for hire, under the laws of the State of Georgia;” 'and the testimony of the defendant was that the Tifton Terminal Company was engaged in the business of a common carrier, and was regulated under the rules of the State and Interstate Commerce Commission, its services consisting largely as a switching company in handling and transferring cars from one railroad company to another. A highway can not be devoted to a private use, but it may be burdened with an additional public use, so long as the second use .does not materially interfere with the, first use. The contention of the plaintiff is, that the Tifton Terminal Company was privately owned, that it was devoted to a private use, and that it was beyond the power of the legislature to authorize the appropriation of the streets to a purely private use, and therefore that the operation of the railroad was a nuisance per se. But the plaintiffs own allegation, as well as the undisputed evidence, was that the terminal company, though privately owned, was engaged in a public use; and we think it was within the power of the municipality of Tifton to grant a right of way to construct a railroad track across Love Avenue, so long as it did not materially interfere with the use of that street as a public highway; and there is no contention of inconsistent use.

5. Complaint is made that the court erred in directing a verdict for the defendant. It appeared that the husband of the plaintiff, by invitation of the driver, was riding with the owner of the horses, as the latter’s invited guest; that the owner of the horses had had much experience in driving horses, and was a skilled driver; that at the time of the injury they were driving towards their home, along Love Avenue, a much traveled public street in the City of Tifton. As they approached the railroad track, and were in about thirty yards of it, an engine of the defendant, suddenly and without warning, was run out from the alley into the street. They had not seen the engine, on account of buildings which obstructed the view. The engine was making loud, unusual, and unnecessary noises, steam was escaping, and no flagman or other person preceded it so as to give warning of its approach; and the horses became suddenly frightened and turned around, throwing the plaintiff’s husband out of the buggy and killing him. The evidence was conflicting as to the character of one of the horses. Some of the witnesses described this horse as nervous, wild, dangerous, and unsafe. Others described it as being safe; and the driver testified that he owned the horse, and had never had any previous trouble, except one time when the horse was frightened at the depot; that on one occasion he had left the horse unhitched in the street while he went into a store, And that it had not tried to run away. Even if the horse was a high-strung and nervous horse, the driver had the right to drive that horse on the public highway. A person has a right to travel on a highway, and there is no rule of law which prevents him from driving a nervous, high-strung horse. City of Rome v. Suddeth, 116 Ga. 649 (42 S. E. 1032). “At grade crossings the traveler on the highway and the railroad company enjoy a common privilege on the highway itself, and each must use such privilege with due regard to the safety and rights of the other. This obligation requires the railroad company, in approaching a grade crossing, even in the absence of a positive statute to that effect, to exercise proper precautions to prevent injury to a traveler on the crossing, or- who is about to cross, or who has just crossed.” Barton v. Southern Railway Co., 132 Ga. 841, 843 (64 S. E. 1079, 22 L. R. A. (N. S.) 915, 16 Ann. Cas. 1232). It was a question for the jury to determine whether the plaintiffs husband lost his life on account of the horse’s becoming frightened by the negligent operation of the defendant’s locomotive, and whether he was guilty of any contributory negligence which debarred him from a recovery; As to these matters the evidence was conflicting, and the court should have left their solution to the jury.

Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.

All the Justices concur.