Murphy v. Georgia Power Co. , 68 Ga. App. 825 ( 1943 )

Upon general demurrer, construing the petition most strongly against the pleader, and applying the rule that "it is not enough to aver facts from which the ultimate fact may be inferred, unless the evidentiary facts pleaded are such as to demand the inference of its existence" Bivins v. Tucker, 41 Ga. App. 771, 774 (154 S.E. 820), Held:

1. The petition alleges that the plaintiff, a passenger on the street-car, was carried beyond his intended destination, but does not show any injury or damage to the plaintiff, on his return journey from the point where he left the street-car to the point of his intended destination.

2. The alleged damages to the plaintiff, a one-legged man on crutches, were not proximately caused by the defendant, and were too remote for recovery of compensatory damages, where the injuries alleged were exposures which among other things caused the plaintiff to be stricken with flu and certain other hardships and discomforts which resulted on account of the journey from the point of intended destination on the street-car line to his home, which latter journey would have been made in an automobile instead of on foot had the person who intended to meet plaintiff not left the station in question, thinking that the plaintiff was not on said street-car, and there were no allegations that the plaintiff made any inquiry as to any facilities which were reasonably available to him for the purpose of avoiding the injuries.

3. In the absence of a definite allegation of the ultimate facts or the preliminary facts which would definitely show that the motorman had noticed that a particular passenger (the plaintiff) wished to get off at the intended destination before the car reached a standstill at such stop, or that if the car had resumed its journey there were special circumstances by reason of which it would have been a lack of due care to stop the car and back up, the petition did not set out a cause of action for nominal damages.

4. Under the rulings stated above, the petition did not set out a cause of action for compensatory damages or for nominal damages. The court did not err in sustaining the general demurrer.

DECIDED FEBRUARY 12, 1943. The petition in effect alleges that George Murphy, the plaintiff, entered the street-car of the defendant and upon entering paid his fare to the motorman who "carefully looked at petitioner and knew or should have known that the petitioner was sick and on crutches and able to hardly move at all even with the aid of said crutches; that the plaintiff intended getting off of said car at the junction or intersection of Frazier Street and Georgia Avenue in Atlanta;" that the car was crowded and as it approached said intersection, and in ample time to allow him to get off the car at his destination, the plaintiff "buzzed" three times for the car to stop at such destination, which was the usual signal given under such circumstances in order to notify the motorman to stop at the approaching intersection; "that said street-car (which was crowded) did stop at Frazier Street and Georgia Avenue (the destination of plaintiff); that several people got off of the street-car at said stop; that said time during which said street-car of defendant was still so that petitioner could get off was not reasonable and not reasonably sufficient for plaintiff, in the condition, sickness and being on crutches, and hardly able to move at all, all of which condition of plaintiff was well known to defendant's motorman or operator, to get fully off of said street-car; and that said street-car did start up and go on out Georgia Avenue toward Grant Park, and thus petitioner was not given a reasonable time within which to get off at Georgia Avenue and Frazier Street in Atlanta, Fulton County, Georgia, where the wrong to petitioner began to occur; that the motorman then operating the car or street-car of defendant did hear petitioner's yells and cries and pleading and beseeching, which yells and calls of mercy were loud and easily heard, he did carry him on several blocks to Grant Park vicinity; that defendant's motorman or operator heard the frantic, loud, and animated calls for mercy so yelled by plaintiff and did then and there disregard them; that he had arranged to have a person named Arthur Matthews Jr. to meet him at said stop at Frazier Street and Georgia Avenue, and escort him and assist him in getting home by use of an automobile; that he finally got back to said Frazier Street and Georgia Avenue stop, but that at this time said Arthur Matthews Jr. had left the said place, thinking that plaintiff was not keeping his engagement to arrive at said point on said street-car at said time and place; that he finally hobbled home in the cold upon his crutches, having to rest from time to time, and that the time required, although he exerted himself to his utmost, to arrive at home — plaintiff having to rest and become chilled as a result from time to time — was one and one half hours; that defendant, through its servant unknown as to name, was negligent at said time and place, and did proximately cause his injuries in that: (a) Defendant's motorman didn't notice that plaintiff, a sick and crippled man, as said motorman had observed, had had time to completely get off of the said street-car. (b) That said motorman didn't look to see that plaintiff had got completely off the said street-car. (c) Defendant's motorman didn't give plaintiff time to get off of said street-car and did carry plaintiff past said stop at Frazier Street and Georgia Avenue; that he suffered untold and indescribable agony, both mental and physical in his effort to hobble home on his crutches as aforesaid; that plaintiff became chilled and did catch cold and did suffer the flu during the approximate ten days immediately thereafter, and that during this time plaintiff was unable to get out of bed and plaintiff suffered excruciating pain, agony which no words can describe; and that plaintiff is still weak and will continue to be so for many weeks to come due to his exposure and the consequent cold which he suffered and also the terrible flu." In Nashville, C. St. L. Ry. v. Campbell,212 Ala. 27, 30 (101 So. 615), it is said: "As to the inconvenience, discomforts, or hardships resulting from the premature departure of plaintiff's kinsman from the station, whereby she was deprived of the prompt and comparatively comfortable conveyance which he had provided for her, we think they were not fairly and reasonably within the contemplation of the parties, and hence are not elements of damage for which she can claim compensation. L. N. R. Co.v. Quick, 125 Ala. 553, 564, 28 So. 14; C. of Ga. Ry. Co. v. Barnitz, 198 Ala. 156, 73 So. 471. The trial court erred in admitting evidence of the nature, incidents, and hardships of the plaintiff's journey from the station to her relatives' home, and in submitting those matters to the jury as a basis for the estimation and award of the damages. It is hardly necessary to observe that, where damages have been held to be recoverable on account of such matters, it has been in cases where the passenger was wrongfully carried past the point of his destination on the railroad and discharged at another point, and the annoyance or injuries were suffered in returning to the point where he should have been discharged in the first instance — quite different from the instant case. A. G. R. R. Co. v. Sellers, 93 Ala. 9,9 So. 375, 30 Am. St. Rep. 17; C. of Ga. Ry. Co. v. Morgan, 161 Ala. 483, 49 So. 865; 10 Corp. Jur. 834 (section 1277)."

Construing the petition most strongly against the pleader it does not allege that any damage occurred to plaintiff on his return from the point or street corner where he actually left the street-car to the point of his originally intended destination. As to the allegations of the occurrences and their consequences in going from the latter point to plaintiff's home, the petition does not allege that he made any inquiry as to whether there were any facilities, nor does he allege there were in fact no facilities which were reasonably available to him which he could have used in going from the street-car stop where he intended originally to leave the car and go to his home, so far thereof as the petition shows might have been available and had he used them, the use would have avoided any damage which he alleges he suffered by reason of his walk from the originally intended stop to his home. And while the petition shows that the plaintiff "buzzed" for the car to stop, yet it also shows that the car was crowded and several other people got off at the point of the plaintiff's intended destination, but there is nothing to show that the motorman had any notice the "buzz" was that of the plaintiff rather than the "buzz" of some of the other passengers who alighted at this point. "And while perhaps this might be inferred from all the facts alleged, it is not enough to aver facts from which the ultimate fact may be inferred, unless, the evidentiary facts pleaded are such as to demand the inference of its existence." Bivins v. Tucker, supra.

The rule here applicable is the one relating to the necessary allegations in a declaration, and not the one where the evidence is sufficient to sustain such allegations. Hence any damage that might have occurred by reason of said walk after he had finally arrived at his intended destination on the street-car track was too remote to authorize a recovery for compensatory damages. If the plaintiff had been the only person attempting to alight from the street-car the situation as to notice of such intention might have been different. The question then arises whether the petition could withstand a general demurrer in that there was a technical invasion of the plaintiff's right or a breach of the defendant's duty which would make it liable for nominal damages only. The petition as amended does state that the motorman heard the cry of the plaintiff to let him get off the street-car, but it does not state distinctly and plainly that such request to get off was heard by the motorman before the car had resumed its journey. Thus, in the absence of notice to the motorman by the plaintiff before the car arrived at the stop in question that the plaintiff intended to get off at this particular stop, or that the motorman after the car stopped heard the request of the plaintiff to get off before the car again started, or within such a short time thereafter that it would be a lack of ordinary care under special circumstances for the motorman not to stop and let him off, or to stop and back up to the station, that the defendant could not be charged with actual negligence.

The petition, construed most strongly against the pleader, does not show that the passenger informed the motorman where he wanted to get off at the time he entered the car or while the car was at a standstill in response to a general notice to stop given by the buzzer and several passengers had alighted. There is no allegation that the motorman had notice before he restarted the car that another passenger, the plaintiff, wished to alight, and that he was not being given sufficient time in which to do so, or that if the car had resumed its journey there were no allegations that there were special circumstances (considering the rights of other passengers) which would have required the motorman, in the exercise of due care, to stop the car and back up to allow the plaintiff to alight. The petition does not set out a cause of action for nominal damages. This case is somewhat different from one where a man has a ticket on a railroad train requiring transportation to a definite station, and the agent is put on notice by the ticket where the passenger wishes to get off, and also from that line of cases where the agent of the railroad stops the train between stations after having gone beyond the place to which the passenger had bought the ticket and the passenger is thereby put off in some lonely isolated spot. The rule here applicable being the one relating to necessary allegations in a declaration, and not the one where the evidence is sufficient to sustain such allegations, the judge did not err in sustaining the general demurrer to the petition. Nashville, C. St. L. Ry. v. Campbell, supra; Texas Pac. Ry. Co. v. Cole, 66 Tex. 562 (1 S.W. 629).

Judgment affirmed. Gardner, J., concurs. Broyles, C. J.,disqualified.