Henderson v. Central Railroad

Blandford, Justice

The original declaration claimed damages from defendant by reason of having fallen in a well situated on the right of way of defendant, and which had been carelessly left open and unguarded. Plaintiff-proposed to amend his declaration by alleging that the well was on the land of plaintiff, and that defendant entered on plaintiff’s land without his knowledge or consent, and cut away the vegetable guards and protection around the well, etc. This is the only material amendment proposed. The court rejected the amendment, and this is excepted to, and error is assigned thereon.

1. This amendment made a new cause of action, and was properly rejected for this reason; and even if this were not so, we do not think that the rejection of this amendment hurt the plaintiff in any way. The same case was made by the original declaration as would have been made by the amendment. The same testimony was admitted as would have been admissible if the amendment had been allowed. The amendment was wholly unnecessary and immaterial. No right was denied the plaintiff by the refusal of the amendment.

2. While the plaintiff was being examined in his own behalf, he was shown a ticket or free pass which purported to have been issued by the railroad company to him as agent, and he was asked by defendant’s counsel if such a pass had not been received by him, and if he did not ride on the same the night the accident occurred, to which he responded affirmatively. After the plaintiff had closed the evidence, the ticket or pass not having been offered in evidence, plaintiff moved to rule out his testimony as to the ticket or pass. This motion was overruled by the court, and this is excepted to and forms an assignment of error.

The court did right to refuse plaintiff’s motion to rule out this evidence. This evidence of plaintiff was an admission against himself. Such testimony, when pertinent to the issue being tried, is always admissible.

3. The court, on motion of defendant’s counsel, awarded a non-suit in said case, and this ruling is excepted to, and forms the main ground of exception.

Was the non-suit properly granted ? This depends upon another question, was there sufficient evidence to authorize a recovery by the plaintiffs ?

This last question was answered in the negative by this court when this case was before it at the September term, 1882. 69 Ga., 715. The facts of the case at that time were the same as the facts now before us in every essential particular, and it was then ruled and decided by this court, “ If one, as agent of a railroad company, accepted a free ticket therefrom, and while traveling over the road, free of charge, upon leaving a train near a depot, was injured, he would be estopped from denying the existence of his agency,” and again, “ where the injury did not result from the running of trains, but resulted from the existence of a dangerous hole in the ground, held by the company in connection with its depot, at which the injured party was an agent, it would be necessary for him to be wholly blameless to authorize a recovery.” It was further held in this case, “ Even if it be conceded that the plaintiff was not a co-employé of the company and stands unaffected by being agent and traveling on a free ticket, the facts show thai his own negligence was the cause of tho injury, and that he could have avoided it by ordinary care,” “ and the question is, could he not by ordinary care have avoided the danger and damage, and did not his own negligence or want of prudence, ordinary prudence, cause the calamity ? It so appears to us from this record; and while negligence is a question of fact for the jury, yet it is the right of the court and its duty to supervise verdicts and grant a new trial where the verdict is without evidence. ...” Such being the ruling of this court in this case, to reverse the judgment of the court below, granting a non-suit in this case, would be to reverse the decision of this court rendered as before set out, which decision is res adjudieata-¡ and over which we have nó power, as has been frequently held by this court. It follows, therefore, that the judgment of the court below must be affirmed.

Judgment affirmed,