Western & Atlantic R. R. v. Voils

Simmons, Chief Justice.

1. This case comes before us upon a writ of error from the court created and established by an act entitled “ an act to establish a city court in the county of Bartow,” etc., approved October 10,1885 (Acts 1885, p. 487). Amotion to dismiss the writ of error was made upon the ground that the act does not provide for reviewing the judgments of the court by bill of exceptions and writ of error from that court to the Supreme Court.

The act, it is true, does not itself provide for this, but under paragraph 5 of section 2, article 6 of the constitution, which declares that the Supreme Court shall be a court for the trial and correction of errors “from the city courts of Atlanta and Savannah, and such other like courts as may be hereafter established in other cities,” and under section 4266 of the code, which was enacted for the purpose of carrying out a provision of the constitution of 1865, similar to that embraced in this paragraph of the present constitution, and which declares that “the mode now prescribed by law for carrying cases from the superior courts to the Supreme Court shall obtain in and apply to the city courts of the cities of Savannah and Augusta, and such other like courts as may be hereafter established,” no express provision .authorizing writs of error from the court in question to the Supreme Court was necessary. The court is clearly within the term “like courts,” as used in the constitution and in the section of the code here referred to. It is designated in the act as a “city court,” and is, by the terms of the act, located “in the city of Cartersville”; and the act provides that it shall be governed by the same laws, and shall have the same power as' to pleading, practice, modes of procedure, etc., as the superior court, and shall have power to grant new trials. See on this subject the reasoning of Atkinson, J., in Western-Union Telegraph Co. v. Jackson, ante, 207. The provision as to bills of exceptions to the' superior court, contained. in section 20 of tbe act referred to, was. held unconstitutional in the case of Maxwell v. Tumlin, 79 Ga. 573, and does not affect the question now before us.

2-5. Mrs. Voils, desiring to take passage on defendant’s train, went to one of its flag stations, and as tlxe train was approaching the station a person who accompanied her to the station signalled to it to stop. The train stopped, and one of the servants of the company assisted certain passengers in alighting at the station. After these persons had left the train and before the plaintiff could get upon it, it began to move off, and she asked the employee who had assisted the other passengers in alighting whether he was going to leave her; whereupon he signalled for the train to stop. It stopped at a place where the track was considerably higher than the ground at the side of it, so much so that the plaintiff could not enter the car without assistance. The employee above mentioned undertook to assist her to mount the platform of the car, and in doing so, she alleges, negligently pushed her so. that she fell upon the platform, and received certain injuries, for which she seeks to recover in this action. The railroad company denied liability, insisting that the plaintiff was not a passenger, and that if she was, it was not within the scope of the duty of the company’s servants to assist her upon the train. It appears from the evidence that although this station was not a regular stopping place for trains, and there was no ticket office there, it was customary for trains to stop there when signalled, in order to take on persons desiring to take, passage thereon. When a person goes to. such a station, and by giving proper signals signifies his intention to. become a passenger, and the train is stopped for the purpose of taking him on, he is, when attempting to enter the train, a passenger and entitled to all the rights of a passenger, although he has not purchased a ticket. Hutchinson, Carriers, §556 et seq.; Ray, Negligence of Imposed Duties, Passenger Carriers, p. 5 et seq.; Shearm. & Redf. Neg. (4 ed.), §490; Brien v. Bennett, 8 Car. & P. 124; Murphey v. R. Co., 43 Mo. App. 383; s. c. 4 American Negligence Cases, Hamilton, p. 383.

Whether it is generally the duty of the conductor or other servants of a railroad company to assist passengers to enter its trains, or not, we think there was, under the particular facts of this case, such a duty on the part of the defendant’s servants. If the train, had stood where it first stopped and where the other passengers alighted, the plaintiff would not have needed any assistance, for the height of the first step from the ground at that point was not so great that she could not get upon the platform without assistance; but when the train moved off from that place; and stopped at a place where she was unable to get on the platform without assistance, and she was invited to enter the car at this place, it was the duty of the company to render her, by its servants, such assistance as may have been necessary; and if the servant who undertook to render her such assistance was negligent in the manner in which he did so, and by reason of his negligence she was injured, she was entitled to recover against the company. But whether this is so or not, the trial judge left to the jury the question whether it was within the scope of this servant’s duty to assist the plaintiff in entering the train or not; and there was sufficient evidence to support their finding that it was within the scope of his duty.

There was no error in refusing to charge as requested by the defendant, and no error in the instructions complained of which requires a new trial; and though the evidence as a whole does not make a strong’ case against the railroad company, this is the second verdict in favor of the plaintiff, and the trial judge having refused to set it aside, this court will not interfere. Judgment affirmed.