Hendricks v. Western & Atlantic Railroad

52 Ga. 467

• Court: Supreme Court of Georgia
• Decided: July 15, 1874
• Status: Published

Opinion

Trippe, Judge.

This case comes fully within the ruling in Western and Atlantic Railroad vs. Mary Strong, decided at the present term. I will only add that the principle which allows a defendant, when sued by the widow for the homicide of her husband, to set up any defense which •would have prevented or lessened the husband’s recovery, had he not died, was very clearly recognized in the Macon and Western Railroad Company vs. Johnson, 38 Georgia Reports, 409; and also during the present term, in the case of Atlanta and Richmond Air Line Railroad Company vs. Ayres. In both of these cases it was held, not only that the contributory negligence of the husband would reduce the amount of the recovery the wife might have been entitled to had he not been negligent, but if the husband could have avoided the consequence to himself, caused by the negligence of the defendant, by the exercise of ordinary diligence on his part, there was no right to any recovery. These were principles not disputed as applicable to the injured party when he sued, and were held, without being questioned, as equally affecting the right of the wife when she sues for the homicide of her husband. And we think they unquestionably do apply to suits by the widow.

Judgment affirmed.