Central Railroad v. Roach

Jackson, Chief Justice,

concurring.

I concur in the judgment.

In respect to tfie point that there can be no recovery unless the defendant, through its agents, was guilty of *443homicide, either wilfully, as in cases of murder and voluntary manslaughter, or unintentionally, as in cases of involuntary manslaughter by criminal negligence, it is enough to say that the ruling in Daly vs. Stoddard, 66 Ga., 145, and in McDonald vs. The Eagle and Phenix, Manufacturing Company, 68 Ga., 839, is inapplicable to railroad companies, as was distinctly announced in the opinion in the latter case.

In the last paragraph of the opinion in that case, druggists and railroad companies are expressly excepted from the rule, by a unanimous court, and the sections of the Code are cited on which the exception is based. Until reviewed and reversed by a full bench, the principle applicable to the facts in the Daly and Stoddard and Eagle- and Phenix cases is law, and the exception of its operation in railroad cases is law in the same way and to the same extent. We are not asked to review either, and could not if asked, because the court is not full. This is a-railroad case, and covered by the exception in the Eagle- and Phenix case; and therefore, the refusal to dismiss the-action, and the overruling the motion for a new trial on the first ground, is right, because the Eagle and Phenix opinion, of a full unanimous court, sustains it, and two judges, even if desired, have no power to reverse it or review it. “ Sufficient unto the day is the evil thereof.”