Parris v. Atlanta, Knoxville & Northern Railway Co. , 128 Ga. 434 ( 1907 )

Beck, J.

(After stating the foregoing facts.)

1. Hpon the hearing of the demurrer the trial judge sustained certain grounds thereof and dismissed the ease, rendering the following judgment: “In my opinion, the petition is subject to demurrer as set out in the third ground of the demurrer, and should be met by amendment. In my opinion, paragraph 5 is subject to demurrer, and should be met by a specific allegation, as I have indicated. In my opinion paragraph 6 is. open to demurrer, and should be met by a specific allegation. The specific allegation of negligence as to time of stopping train and starting it, by the allegations in the petition, are in the State.of Tennessee. This seems to be the basis of the plaintiff’s complaint, the groundwork of his cause-of action; and it seems to me the demurrer is good as to those allegations of negligence that happened in the State of Tennessee. Under the ruling in the Wilson case, an action for those things-could be brought only in the county of the residence of the corporation, it wit, in Fulton county, as was decided in that case. It is-ordered that the demurrer be sustained and that the suit be dismissed.”

We-can not agree with the conclusion of the learned judge that “the groundwork of his [plaintiff’s] cause of action” rests upon, “those allegations of negligence that happened in the State of Tennessee,” and that, “under the ruling in the Wilson ease [116 Ga. 189], an action for those things could be -brought only in the county of the residence of the corporation, to wit, in Fulton county.” •While it is true that the negligence of the defendant company began in the State of Tennessee, at a station very near the point where the railroad crosses the boundary between that State and the State of Georgia, under the allegations of the petition there was a continuation of the failure on the. part of the company to exercise due care and diligence for the safety of the passenger, until after the train had passed into Fannin county in this State, where the negligent act of the company finally culminated in the catastrophe to the plaintiff which resulted in the severe injuries set forth in his petition. The defendant contends, that what took place in Georgia was the consequence of the negligent act which took place in Tennessee, and that but for the failure to stop the train a sufficient length of time to allow the would-be passenger to enter the car, he would have been in the coach, would not have been jostle_d by the other passengers, and would not have been thrown from the car;. and that none of the things that were alleged to have occurred in Georgia were independent causes producing plaintiff’s injuries, but were the resulting consequences of the negligence alleged to have-taken place in the State of Tennessee. Even if we agreed with this-contention of the 'defendant, we should still have to hold that the plaintiff’s cause of action originated in Georgia. For if nothing more appeared than that the defendant committed a breach of its -duty to the passenger by a failure to stop its train a reasonable length of time, under the circumstances, to allow the passenger to enter the car in safety, that breach of the plain duty resting upon the defendant would have given rise to no cause of action whatever. If, notwithstanding the too-sudden and negligent starting of the train before the plaintiff had a reasonable opportunity for entering the coach and finding a seat, he had, by his alertness and diligence and strength, procured a position upon the steps or platform, and had been able to maintain himself and escape all injury and damage, no cause of action in his favor would have arisen against the defendant, through the negligence of whose employees he had been placed in a position of peril; for the mere creation-of a position perilous to the plaintiff would not have entitled him to recover damages. IJp to the time of the actual infliction of the injuries finally resulting from the negligence of the employees of the railroad company, the cause of action was inchoate, or rather it was merely an embryo, ■ and if, at any time before the injury was actually inflicted upon the passenger, the train had been checked or stopped so that he could have made his way to a place of safety, that embryo would never have matured so as to be able to stand in court.

“Cooley, J., in the case of Post v. Campan, 42 Mich. 96, says: ‘The elements of a cause of action are, first, a breach of duty owing by one person to another; and second, a damage resulting to the other from the breach. Damage where no duty is violated is damnum absque injuria; a neglect of duty, where no loss occurs, is •equally incapable of giving a right of action?’” I Ency. PL & Pr. 116. And the expression “cause of action” is thus defined, in All-husen v. Malgarejo, L. E. 3 Q. B. 343: “The expression ‘cause of action’ means the whole cause of action; that is, all the facts which together constitute the plaintiff’s right to maintain the action.” And again: “The commission or omission of an act by the defendant, and damage to the plaintiff in consequence thereof, must unite to give him a good cause of action. No one of these facts by itself is a cause of action against the defendant.” Jaggard, in his work ••on Torts, states the principle thus: “Where, however, the law will not presume damage, the plaintiff’s cause .of action is complete only when damages conforming to the legal requirements have been actually suffered; then the cause of action is complete upon the happening of such damage.” 1 Jag. Torts, 105. See also Central Ry. Co. v. Dorsey, 116 Ga. 719. Applying these principles to the facts of the case under consideration, its manifest that while the act of negligence, which was in a certain sense the cause of the injury to the plaintiff, may have occurred in the State of Tennessee, his cause never existed until he had passed into this State. The cause of the injury upon which the right of action is founded is not the cause' of action itself, but is only one element in the cause of action.

2. In the bill of exceptions there is an assignment of error on the order of the judge sustaining certain grounds of the special demurrer to those portions of the petition indicated in this ground of the demurrer; but these exceptions are not referred to in the brief of counsel for the plaintiff in error, and are treated as abandoned. But omitting the allegations of the petition stricken upon special demurrer, the remainder of the petition stated a cause of action which was good as against a general demurrer, and the court erred in dismissing the case.

Judgment reversed.

All the Justices concur.