Macon Railway & Light Co. v. Vining

Cobb, J.

(After stating the foregoing facts.)

1. It is the duty of a street-car company to.select a reasonably safe place for landing passengers wherever it may stop a car for-that purpose. The duty which the law imposes upon an ordinary railroad company, to provide and maintain a safe place for landing its passengers, has no application to a street-car company operating its line along a public street or road; but the duty imposed upon such a company is, as stated, to select a reasonably safe place for landing its passengers, and to make such selection with reference to getting off the car while the same is at rest. The company is not responsible for any peril which the passenger incurs, without its fault, after the stoppage has terminated, and the passenger has secured a safe footing upon the street. Augusta Ry. Co. v. Glover, 92 Ga. 133 (10); Nellis on St. Surf. Rds. 449. If the passenger selects the place to alight, and the employees acquiesce in such selection, by stopping the car at the place chosen, and the passenger be well acquainted with the place, or the danger of attempting to alight there be apparent to him, and he is injured while alighting, as a consequence of the character of the place, and without fault op the part of the employees, the company would not be liable. If, however, the passenger selects a place which is reasonably safe, and the car has stopped, and on account of the darkness the passenger can not determine whether the car has stopped at the place designated, and the conductor in charge of the car permits the passengér to attempt to alight, without informing him that the place selected has not been reached, and also without informing him as to the dangers incident to alighting at the place at which the car has actually stopped, then the company would be liable, if the passenger is injured in alighting as a consequence of a danger of which he was not aware, and which, on account of the darkness, was not apparent to him at the time he attempted to alight, or, after having stepped from the car, attempted to proceed along what would have been a safe way in the event the car had stopped at the place selected. Nellis on St. Surf. Eds. 485, 524; Henry v. Street Ry. Co. (Wash), 64 Pac. 137. Applying these principles to the facts of the present case, the petition set forth a cause of action, and was not subject to the objections raised by the demurrer.

2. During the progress of the case and on the second day of the trial the plaintiff introduced as a witness a physician, who had examined her on that day, and who testified as to the character and extent of her injuries. After this witness had been examined, the defendant’s counsel moved the court to nominate some physician to examine the plaintiff, as the physician who had testified in behalf of the defendant had not seen the plaintiff for several months prior to the trial. The judge overruled the motion, and in a note to the motion for a new- trial states that there were no other witnesses to be examined after the motion was made, that the case was ready for argument, that argument actually began within five minutes, and that on account of the congested condition of the calendar of the court he did not feel justified in suspending the trial for the purpose of having the examination made. Applications of this character are, under all circumstances, addressed to the sound discretion of the court. R. & D. R. Co. v. Childress, 82 Ga. 719. Where an application of this character is made pending the trial, which if granted would result in a suspension of the trial and a delay of the business of the court, it would take a strong case for this court to reverse a judgment refusing the application. Under the circumstances of the present case there was no abuse of discretion in refusing the application. See S., F. & W. Ry. Co. v. Wainwright, 99 Ga. 255.

3. All of the charge of the judge on the subject of the measure of damages is set forth in the statement of facts. Error is assigned upon the last two sentences, and the criticism thus made upon the charge is well taken. The judge in effect tells the jury that any amount which shall be given to the plaintiff as damages for her lost time is to be determined by the enlightened consciences of the jurors. More than this, he tells them in terms that whatever amount they assess “ in this case ” in favor of the plaintiff must “be such an amount as is dictated by the enlightened consciences of impartial jurors.” There can not be two opinions on the question as to whether this charge is erroneous. But the question is whether the error is of such a character as to require a reversal of the judgment. Looking to the petition, we find that the plaintiff claimed damages not only for pain and suffering and for being disabled from attending to a business which she was carrying on, but she alleged that as a result of her injuries her capacity to labor was entirely destroyed. She claimed damages, therefore, of a threefold nature, pain and suffering, lost time, and diminution in capacity to labor. When we look to the evidence, it appears that there was nothing upon which a finding for lost time could be properly based, nor was there any evidence upon which a finding for diminished capacity to labor could'be properly based. The effect of the judge’s charge, therefore, was to remit to the broad field of the enlightened consciences of impartial jurors the determination of two elements of damage that the law requires should be measured by more certain standards. It is said, though, that there was evidencé which would authorize a finding of a much larger amount for pain and suffering alone, and that therefore the charge was harmless. We can not take this view of the matter. The enlightened consciences of the jurors may have impelled them to find less for pain and suffering than the amount fixed in their verdict, and it may be that a portion of the verdict, although not a large one, represents what the enlightened consciences of the jurors fixed as compensation for lost time and diminished capacity to labor. It is also contended that the charge complained of was substantially the same as the charge in the Goodson case, 118 Ga. 833, and an examination of the record and the charge in that case discloses that similar language to that now complained of was used by the judge in the beginning of the charge on the subject of the measure of damages and in its conclusion. But he dealt with the subject in an elaborate way, and distinctly told the jury how they should ascertain the amount to be fixed for diminished capacity to labor, and instructed the jury so clearly that there could be no misunderstanding that the verdict was to be made up of tw-o amounts fixed according to certain standards. The error committed in the beginning and concluding portion of the charge dealing with the subject of the measure of damages was thus cured, and that was the extent of the ruling in the Goodson case. We do not think that in the present case the charge as a whole can be said to have cured the error complained of. That portion of the charge in the Goodson case which was similar to the charge given in this case was never approved by this court, but the error in the charge was held not to require a new trial, for the reason that the other parts of the charge were' of such a character as to do away with the harmful effects of this error. After most careful and anxious consideration of the record in this case, we feel constrained to reverse the judgment. The assignments of error other than those above dealt with relate to matters which will probably not arise upon another trial.

Judgment reversed.

All the Justices concur.