Atlanta Consolidated Street Ry. Co. v. Bates , 103 Ga. 333 ( 1898 )

Lewis, J.

It appears from the record in this case, that the plaintiff was injured under the following circumstances: A car upon which he had been traveling had stopped at - a street-crossing, for the purpose of enabling him to alight. He departed from the car at the rear end, on the side next to a parallel track of defendant’s line. This side was as much open to egress from the car as the other. The plaintiff was partially deaf. There was some evidence that the conductor warned him of the approaching car, and went to the extent of following him out to the rear platform and putting his hands on his shoulders, with a view of preventing his alighting from that side of the car, and that plaintiff paid no heed to the efforts made to stop him. „ The plaintiff, on the other hand, claims that he heard no such warning, if any was given, and that no steps were taken to prevent his departure from the car 'on the side next to the parallel track. Plaintiff further testified that he had made visits to the same locality before, and had gotten off at the same crossing and on the same side of the street; that his reason for getting off on that side on this particular occasion was that his business was on that side of the street; that it was raining at the time and he had his umbrella, and when he got to the end of the car, seeing that it was raining, he attempted to raise the umbrella and step down to the street, and just as his foot hit the ground the approaching car struck him. It was clearly inferable from all his testimony that he was struck “while alighting from the car, and before the act of alighting had been completed. It further appeared that the motorman in charge of the car that injured plaintiff saw, some distance before he reached the place of the accident, that the car upon which the plaintiff had been travelling was about to stop at the crossing for the purpose of discharging passengers. The opinion of witnesses as to the rate of speed at which the approaching car was moving differed, varying from four to seven miles per hour. When the plaintiff, however, commenced to alight from the steps, the car upon the parallel track was within only a few feet of him, and it was then impossible for the motorman to stop the same before coming in contact with the plaintiff’s person. Plaintiff claimed that, in consequence of the injury, his capacity to earn money in his usual vocation was diminished one half. There was much evidence upon the subject of the injury and the damage he sustained, but no point is made upon the excessiveness of the verdict. Indeed, the damages proved largely exceed the amount of the finding of the jury.

The above, in connection with the reporter’s statement of the case, is sufficient to a clear understanding of the errors complained of and the decision of this court thereon.

1, 2. The doctrine announced in the first headnote needs no elaboration. There is some apparent conflict in the authorities as to whether the relation of common carrier and passenger exists after the passenger has alighted from the car and before he has had opportunity of passing over and beyond a parallel track of the company’s line; but certainly the relation exists while the passenger is in the act of alighting. When this injury occurred, therefore, the defendant company was under a legal obligation to use extraordinary diligence to protect the life and person of the plaintiff. We know of no rule of law that would necessarily restrict this doctrine to the agents of the • company having in charge the particular car upon which the plaintiff had taken passage. The rule of the company introduced in evidence in this case required the motorman on the approaching car to be on the watchout, and to so have his car under control as to prevent any injury, not only to foot passengers who might be crossing the street, but to defendant’s passengers who might be disembarking from the. car that had stopped at the public crossing for this purpose. To the ordinary traveller upon foot, the motorman was bound to exercise only ordinary care and diligence; to the defendant’s passengers, he was bound to use extraordinary care and diligence. Especially is this the case when the motorman knew, or had reason to believe, that passengers were about to alight from the car that had stopped, and that they might alight dangerously near the track upon which he was running. This sufficiently disposes of the 15th, 16th, 19th and 20th grounds of the motion for new trial, there being sufficient allegations in the declaration and sufficient testimony to authorize the rulings of the ■court complained of in said grounds.

3. It is a self-evident proposition that no one has cause to ■complain of what does not hurt him. In the 4th ground of the motion objection is'made to the question touching the effect of plaintiff’s injuries as to the probable duration of his life. In .answer to that question the witness stated that he was not prepared to say what effect it would have in this particular case. In the 6th ground of the motion objection is made to the question as to whether or not the motorman in charge of the car that struck the plaintiff was more or less addicted to intemperance. The witness answered that he did not know. In the ■8th ground of the motion it appears that on the direct examination by the defendant’s counsel, the witness stated that the rule of the company had been changed since the accident, in reference to the proper side of the street upon which the car was required to stop; and on the cross he was asked how long ■after the accident was it that the change was made? This was the question objected to, and the witness replied that he did not know. It is unnecessary to inquire whether or not the objections to these questions were well taken. Conceding, for the sake of the argument, that the questions were improper, the answers of the witnesses extract from them the sting of any illegality that they may have contained.

4. In the 11th ground of the motion objection is made to that portion of charge of the court stating to the jury why questions and answers were permitted as to whether or not one of the agents of the defendant company drank liquor, or was a drinking man. The case did not call for any charge at all upon this subject, but inasmuch as there was no intimation by the court that the answers contained any such evidence, we do-not see how the remarks of the court could have operated with any prejudice to the defendant company. We therefore think this an immaterial error and not good ground for a new trial.

5. It appeared from the testimony that at the time of the injury the plaintiff was following the business of a banker. Such was his regular vocation and had been for some time. It. further appeared that as the result of his injuries his capacity to earn money in this vocation had been diminished one half. What his services were worth in this particular occupation at-the time of the injury was a circumstance which the jury could consider in reaching a conclusion as to how much he should recover on this item in his claim for damages. There was, therefore, no error in the court admitting the testimony complained of in the 5th ground of the motion.

6. The practice of plaintiff as to his manner of departing from street-cars on other occasions, either before or after the injury complained of, could not be legitimately considered by the jury as throwing any light upon his conduct at the time-when he was injured. Counsel for plaintiff in error contended that this testimony was admissible for the purpose of showing that the plaintiff was a man who persisted in getting off the cars in the way that suited him. This might open the door-in any case of the sort to an endless investigation. If the defendant company is allowed to prove what plaintiff had done on another occasion, the plaintiff would certainly have a right to justify or explain his conduct upon such occasion. The question is, whether he was guilty of any act of negligence either contributing to or causing his injury; and the general character of the plaintiff touching his want of care or diligence with reference to the particular subject-matter under investigation is not a question in issue. The testimony was, therefore, irrelevant. Atlanta & West Point R. Co. v. Smith, 94 Ga. 107, (3). This disposes of the 7th and 30th grounds in the motion.

7. We think the questions set forth in the 9th ground of the motion for new trial were proper, under the pleadings and evidence in this case. The petition charged that one element of negligence which resulted in the plaintiff's injuries was, that the defendant knew it was dangerous to allow passengers to alight from a car on the side next to its parallel track, and nevertheless took no steps to prevent it. Whether such omission amounted to negligence or not was not a question of law, but one for the jury to determine. Under the allegation it was permissible for the plaintiff to show how passengers could be prevented from incurring this danger, by the use of ropes of other guards on the platforms of its cars, and the question as to whether extraordinary diligence required such precaution was properly left by the court for the determination of the jury.

8. The principle ruled in the 8th headnote is decided in the case of Georgia Railroad v. Williams, 74 Ga. 723, (3). This disposes of the 12th ground in the motion.

9. Complaint was made of the charge set forth in the 13th ground of the motion for new trial, “because it left the jury to infer that although they might believe from the evidence that the plaintiff was deaf, he was still required to use no more care than the ordinarily prudent man who could hear.” We do not "think the words of the charge complained of susceptible ,of such a construction. The charge is altogether as favorable to the defendant company as could be asked. The instruction was to the effect that plaintiff's deafness could not lessen the degree of care required; that, notwithstanding this defect, he should exercise the same caution “which every prudent man would exercise under the same or similar circumstances.” This did not imply that he was required to exercise only that care which a prudent man who could hear would use, but which a prudent man in the same condition as to the impairment of his hearing would exercise.

10. The remaining grounds of the motion relate mainly to rulings of the court which counsel'for plaintiff in error claimed were not authorized by the pleadings and the evidence. We do not deem it necessary to treat of them seriatim, but only to ■say in general terms that, in the light of the entire record in the case, there was no material error in any of the rulings to which' exception has been taken. After examining the entire charge of the court, we think it fairly laid before the jury the contentions of the parties as presented by the pleadings and the evidence, and fairly presented to the jury the defenses relied upon by the plaintiff in error.

11. It is insisted in this case that the verdict is without evidence to support it; that the injury of plaintiff was not the result of any negligence on the part of the defendant, but that the dame was caused by his own negligence, and could have been avoided by the exercise of ordinary care and diligence. Questions of absolute and relative diligence and negligence required of the parties in such cases are, under our law, peculiarly questions for the jury. While the court will not allow a verdict to stand which is contrary to the evidence and is without .evidence to support it, yet if the verdict reached by the jury upon matters peculiarly within their province does not necessarily do violence to legitimate conclusions which may be deduced from the testimony, this court will not interfere with their finding. We could not, in this case, undertake to say, as a matter of law, that the street-car company, for instance, was guilty of no negligence and not even of slight neglect, when the motorman on one of its cars was approaching another car where he had reason to believe passengers might alight in dangerous proximity to the track upon which he was running, and neglected to have his car under such control that he could stop the same instantly in the event such a peril was presented; and especially if the rule of the company he was serving required him to so regulate the speed of his car, under the circumstances mentioned, as to have the same under absolute control. On the other hand, we are not prepared to say, as a matter of law, that when a passenger undertakes to leave a car on the side next to a parallel track without looking to see whether another car is approaching upon such track, he is guilty of such negligence as would prevent his recovery, regardless of the want of care exercised by the company’s agents. In Booth’s Street Railway Law, § 346, we find this principle announced: “Unless cars running on parallel tracks are so constructed and arranged as to receive and discharge passengers only on the outer side, it is not-as a matter of law negligence, when no rule of the company is violated, to attempt to board the car from the space between the parallel tracks.” We see no reason why the same rule should not apply to a case where one attempts to leave the car on the same side. The apparent conflict of authorities upon this subject, on examination, will be found to grow out of differences in the facts of each case, rather than in the principles enunciated. In a Massachusetts case it was held, where a party stepped from an open car before it had stopped, and was struck and killed by an electric car coming from the opposite direction upon a parallel track, which was running at the rate of 15 miles an hour, the gong of which was sounding at the time, and there was nothing to prevent, the deceased from seeing and hearing it, that a verdict was properly directed for the defendant. Creamer v. West End St. Ry. Co., 31 N. E. 391. On the other hand, in a Missouri case where it appeared that a rule of a cable railway company for the management of its trains at the junction of its lines required its agents to keep the intervening track free from trains while the discharging train was at the junction, it was held that persons leaving the train, while crossing the intervening track, were still passengers in so far as to be entitled to protection against the negligent management of trains on that track, and. that, being so, they were relieved from the ordinary duty of looking or listening before crossing the track. Burbidge v. Kansas City R. Co. 36 Mo. App. 669. There is not necessarily any difference in the principles decided in the above two cases. In the Massachusetts case one main element of negligence on the part of the passenger consisted in undertaking to leave the train before it had stopped. We are not prepared, however, nor is it necessary to an adjudication of this case, to follow either line of authority above cited. Questions of negligence and diligence in such matters being, under the laws of Georgia, peculiarly for the jury to'pass upon, we think the principle announced in the case of the Chicago Street R. Co. v. Robinson, 127 Ill. 1, 4 L. R. A. 126, the correct one to apply to this case. There the court says: “Stepping onto the track of a street-raih'oad, whether the cars thereon are horse-cars or grip-cars, without first stopping to look to see whether a car is approaching, is. not, as a matter of law, and without any regard to surrounding circumstances, negligence, but the character of such action is a question of fact for the jury.” With much more force could the rule last quoted be applied to the case we are now considering, in which a passenger is alighting from a street-car in the street at a point where extraordinary diligence is required of the company, and the exercise of which the passenger has a legal right to expect.

Judging from the amount of the verdict in this case, which was very small, considering the injuries of the plaintiff in the light of the testimony, the jury must have concluded that the plaintiff was himself guilty of negligence which contributed to the injury he sustained, and that such injuries having resulted also from a failure of defendant’s agents to exercise proper diligence, a recovery should be had, but not for the full amount of the damages shown. In view of the entire record, We can not say that such a finding is without evidence to support it, and do not think that the judge below abused his discretion in overruling the motion for new trial.

Judgment affirmed.

All the Justices concurring.