McEwen v. Atlanta Railway & Power Co.

48 S.E. 391, 120 Ga. 1003, 1904 Ga. LEXIS 775

• Court: Supreme Court of Georgia
• Decided: August 12, 1904
• Status: Published

Opinions

LamaR, J.

The public demands rapid transit, and passengers can not recover for damages occasioned by the jolts and lurches inevitably caused by running around curves at a proper rate of speed. Augusta R. Co. v. Renz, 55 Ga. 126; Macon R. Co. v. Moore, 99 Ga. 230; Ball v. Mabry, 91 Ga. 783; Crine v. E. T. Ry. Co., 84 Ga. 651, 657; Wynn v. City & Suburban Ry., 91 Ga. 357; Ayers v. Rochester Ry. Co., 156 N. Y. 104; Hite v. Metropolitan St. Ry. Co., 130 Mo. 132; Wilder v. Metropolitan St. Ry. Co., 41 N. Y. Supp. 931, affirmed, 161 N. Y. 665; Reber v. Pittsburg Traction Co. (Pa.), 36 Atl. 245. But for a street-car to round a curve at a rate which threw three passengers from their seats into the aisle proclaims that, regardless of ordinance or estimates, the speed was at that point improper. Acts speak louder than words. The undisputed physical facts declare the speed to have been unsafe, in terms too certain to be disproved by mere opinion evidence of non-experts as to the rate at which the car was moving. Patton v. State, 117 Ga. 230 (5). It is true that several of the witnesses said they did not know how fast it was running; others that “it was not unusual;” another, “at a jog trot;” another, “not more than six or seven miles an hour;” others, “ pretty lively,” “ very fast,” and “ unusually fast; ” and another, “ fifteen miles an hour, possibly more.” If there were nothing except these contradictory estimates, a verdict finding that the car was running more than fifteen miles an hour or less than six could have been sustained. Or, if no one had fallen except the plaintiff, it might have been concluded that her injury had been due to a fall occasioned by her previous sickness, some sudden accession of weakness, or by some cause other than the negligence of the company. But when another passenger on the same seat and next to the window, and still another in a different part of the car, were likewise thrown into the aisle, there remains no room for doubt that the speed was improper- and unsafe. Mere estimates are not sufficient to overcome the presumption .arising from the injury, when coupled with the additional undisputed fact that two other persons were so jerked and hurled as to be thrown from their seats when the car ran round the sharp curve. A new trial should have been granted.

Judgment reversed.

•All the Justices concur, except Fish, P. J., and Gaudier, J., who dissent.