Jenkins, P. J.
The plaintiff brought suit for the homicide of her eighteen-year-old son, alleging that while he was riding as a passenger on a railroad-train operated by the defendant, he was negligently killed in a head-end collision of that train with a freight-train. The petition shows (and it is sustained by the evidence) that the passenger-train was then running in the night-time out of its schedule.and without a headlight. The defendant filed a general demurrer, and a special demurrer based upon several grounds, one of which was that the petition failed to set forth how the deceased became a passenger-— whether by purchase of a ticket or by payment of fare, or “ by holding free transportation,” or otherwise. On the conclusion of the plaintiff’s evidence the defendant in open court admitted negligence, and rested the defence upon the contention that the deceased was not a passenger on the train at the time he was killed, but was attempting to ride thereon by concealing himself on the “ blind baggage ” between the front end of the express-car and the rear end of the tank on the train, and that if he was killed on the occasion referred to, his death was the result of his own carelessness in riding in said perilous place and without any knowledge on the part of the defendant or any of its agents. The jury found a verdict in favor of the plaintiff for $15,000. Exceptions were taken to the overruling of the demurrer and to the refusal to grant a new trial. Held:
1. The petition set forth a cause of action, and the judge did not err in overruling the different grounds of special demurrer, including the one specifically referred to in the foregoing statement, which is the only ground argued in the brief of counsel. A petition against a common carrier for the negligent homicide of a passenger can be based upon an allegation that the deceased was at the time of the homicide a passenger of the defendant, without ordinarily being required to allege specifically the details as to the manner or method of his becoming such, with respect to the purchase of a ticket, or whether the purchase of a ticket had been made. In such a case the plaintiff: must rely upon the facts as they shall be made to appear. The rule is different where the gravamen of the complaint is the alleged actual repudiation of an expressly pleaded contract for passage, and where the basal fact supporting the right to recover is thus expressly made to consist in the validity of the pleaded contract by which the duties owing by the defendant to the passenger are plainly limited. Riley v. Wrightsville &c. R. Co., 133 Ga. 413, 419 (2) (65 S. E. 890, 24 L. R. A. (N. S.) 379, 18 Ann. Cas. 208).
2. It is impossible for this court to say, as a matter of law, that the evidence in this case, when considered in its entirety, absolutely demanded a finding in favor of the defendant’s contention that the deceased was a trespasser, or that at the time the collision and the homicide occurred he was riding on the “ blind baggage.”
3. Exception is taken to the plaintiff being permitted to testify that “ in a certain sense ” she was partially dependent upon her son for maintenance and support. “ The statement of the witness that she ■ was dependent upon her son was the statement of a fact, and not objectionable [9] as being a mere conclusion. This statement, if made alone, might have been shown by cross-examination to have been an inference unsupported by facts; but the witness had already given the facts upon which the statement was predicated. Any witness, after having related the facts upon which he bases an opinion, is permitted to give an opinion, and its probative value is a matter for the jury.” Ga. Ry. &c. Co. v. Bailey, 9 Ga. App. 106 (4), 107 (70 S. E. 607). Compare Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110 (4), 112 (103 S. E. 259). In this case the mother had testified as to the nature of the dependency to which she in this way referred. She had testified that, on account of continued illness her husband had become unable to attend to business, and that the deceased had taken charge of the husband’s farming business, on which she and the other members of the family were dependent for support. See Augusta Ry. Co. v. Glover, 92 Ga. 132, 133 (6) (18 S. E. 406); Atlanta &c. Ry. Co. v. Gravitt, 93 Ga. 369 (2) (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. R. 145); City of Thomasville v. Jones, 17 Ga. App. 625, 628 (4 a) (87 S. E. 923).
4. The court did not err in charging section 2715 of the Civil Code, that “ A carrier may demand prepayment of fare; but if, by its permission, persons enter its vehicle with the intention of being carried, an obligation to pay fare is implied on the part of the passenger, and the reciprocal liability of the carrier arises;” or in charging, “If you believe from all the facts and circumstances that the said Allen was, just before the departure of the train, on the steps, or on the platform, of the passenger car of the defendant, which was open for the reception of passengers, in the act of leaving, entering for the purpose of becoming a passenger, then I charge you that the relation of passenger and carrier arose between said deceased and said defendant, and defendant owed him the duty of exercising extraordinary care for his safety until he arrived at his destination.” Ga. Ry. &c. Co. v. Cole, 1 Ga. App. 33, 34 (57 S. E. 1036).
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Jenkins, P. J.
The plaintiff brought suit for the homicide of her eighteen-year-old son, alleging that while he was riding as a passenger on a railroad-train operated by the defendant, he was negligently killed in a head-end collision of that train with a freight-train. The petition shows (and it is sustained by the evidence) that the passenger-train was then running in the night-time out of its schedule.and without a headlight. The defendant filed a general demurrer, and a special demurrer based upon several grounds, one of which was that the petition failed to set forth how the deceased became a passenger-— whether by purchase of a ticket or by payment of fare, or “ by holding free transportation,” or otherwise. On the conclusion of the plaintiff’s evidence the defendant in open court admitted negligence, and rested the defence upon the contention that the deceased was not a passenger on the train at the time he was killed, but was attempting to ride thereon by concealing himself on the “ blind baggage ” between the front end of the express-car and the rear end of the tank on the train, and that if he was killed on the occasion referred to, his death was the result of his own carelessness in riding in said perilous place and without any knowledge on the part of the defendant or any of its agents. The jury found a verdict in favor of the plaintiff for $15,000. Exceptions were taken to the overruling of the demurrer and to the refusal to grant a new trial. Held:
1. The petition set forth a cause of action, and the judge did not err in overruling the different grounds of special demurrer, including the one specifically referred to in the foregoing statement, which is the only ground argued in the brief of counsel. A petition against a common carrier for the negligent homicide of a passenger can be based upon an allegation that the deceased was at the time of the homicide a passenger of the defendant, without ordinarily being required to allege specifically the details as to the manner or method of his becoming such, with respect to the purchase of a ticket, or whether the purchase of a ticket had been made. In such a case the plaintiff: must rely upon the facts as they shall be made to appear. The rule is different where the gravamen of the complaint is the alleged actual repudiation of an expressly pleaded contract for passage, and where the basal fact supporting the right to recover is thus expressly made to consist in the validity of the pleaded contract by which the duties owing by the defendant to the passenger are plainly limited. Riley v. Wrightsville &c. R. Co., 133 Ga. 413, 419 (2) (65 S. E. 890, 24 L. R. A. (N. S.) 379, 18 Ann. Cas. 208).
2. It is impossible for this court to say, as a matter of law, that the evidence in this case, when considered in its entirety, absolutely demanded a finding in favor of the defendant’s contention that the deceased was a trespasser, or that at the time the collision and the homicide occurred he was riding on the “ blind baggage.”
3. Exception is taken to the plaintiff being permitted to testify that “ in a certain sense ” she was partially dependent upon her son for maintenance and support. “ The statement of the witness that she ■ was dependent upon her son was the statement of a fact, and not objectionable [9] as being a mere conclusion. This statement, if made alone, might have been shown by cross-examination to have been an inference unsupported by facts; but the witness had already given the facts upon which the statement was predicated. Any witness, after having related the facts upon which he bases an opinion, is permitted to give an opinion, and its probative value is a matter for the jury.” Ga. Ry. &c. Co. v. Bailey, 9 Ga. App. 106 (4), 107 (70 S. E. 607). Compare Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110 (4), 112 (103 S. E. 259). In this case the mother had testified as to the nature of the dependency to which she in this way referred. She had testified that, on account of continued illness her husband had become unable to attend to business, and that the deceased had taken charge of the husband’s farming business, on which she and the other members of the family were dependent for support. See Augusta Ry. Co. v. Glover, 92 Ga. 132, 133 (6) (18 S. E. 406); Atlanta &c. Ry. Co. v. Gravitt, 93 Ga. 369 (2) (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. R. 145); City of Thomasville v. Jones, 17 Ga. App. 625, 628 (4 a) (87 S. E. 923).
4. The court did not err in charging section 2715 of the Civil Code, that “ A carrier may demand prepayment of fare; but if, by its permission, persons enter its vehicle with the intention of being carried, an obligation to pay fare is implied on the part of the passenger, and the reciprocal liability of the carrier arises;” or in charging, “If you believe from all the facts and circumstances that the said Allen was, just before the departure of the train, on the steps, or on the platform, of the passenger car of the defendant, which was open for the reception of passengers, in the act of leaving, entering for the purpose of becoming a passenger, then I charge you that the relation of passenger and carrier arose between said deceased and said defendant, and defendant owed him the duty of exercising extraordinary care for his safety until he arrived at his destination.” Ga. Ry. &c. Co. v. Cole, 1 Ga. App. 33, 34 (57 S. E. 1036).
5. The court charged as follows: “The plaintiff contends that she is entitled to recover for the death of her son, for the reason that she was dependent upon him for support, and that he contributed substantially to her support, and was so doing at the time of his death. On this ■ point I charge you that a mother may recover for the homicide of her child upon whom she is dependent, or contributes to her support, unless said child has a wife or child, and she is entitled to recover the full value of the life of such a child who is killed. I charge you, she need not be wholly dependent on him for a support; she is entitled to recover if merely partially dependent on him, and could recover the full value of his life. If you believe, from the preponderance of the evidence, that Mrs. Allen was partially dependent upon her deceased son for support, and that he contributed substantially to her support, she would be entitled to recover for the value of his life, unless prevented from so doing for some legal reason. The contribution need not be in money or some other substantial manner; the question is, did the deceased contribute substantially to the support of the plaintiff, and was she dependent upon him for this support in part. If you find she was partially dependent upon him, and that he contributed substantially to [10] her support, this will be sufficient to authorize you to find for the plaintiff, should you find for her under further instructions given to you by the court and the evidence as submitted in the case.” It will be observed that in one particular portion of this excerpt the word “ or ” is used when the word “ and ” should have been employed. The court subsequently made the following statement to the jury: “ Counsel has just called my attention to the fact that I used the word ‘ or ’ with reference to contribution and dependency. I charge you that a mother may recover for the homicide of her child upon whom she is dependent, and who contributes to her support, unless said child leaves a wife or child, and she is entitled to recover the full value of the life of such child.” Held:
(а) It is a well-settled rule that when the court gives in charge to the jury an erroneous instruction tending to mislead them as to the law on a material issue in the case, and the error remains uncorrected, the fact that a different and correct instruction as to the same matter is given in another part of the charge will not nullify or cure the uncorrected error (Central of Ga. Ry. Co. v. Deas, 22 Ga. App. 425, 426 (3), 96 S. E. 267); and this rule is fully recognized in the dissenting opinion in the case just cited, to which dissent, although affording no sort of authority, reference has been made in the briefs. It is equally well settled, however, that, in determining whether or not an erroneous and misleading instruction has really been given, the excerpt complained of “ should be considered in its relation to its context; and where the context removes all probability of an erroneous impression which might be created by the excerpt as an isolated fragment, a new trial will not be granted.” Suple v. State, 133 Ga. 601 (66 S. E. 919); Heath v. State, 68 Ga. 287; Wilson v. State, 69 Ga. 224, 225 (7); Britten v. State, 124 Ga. 783 (53 S. E. 99) ; Gaston v. Gainesville &c. Ry. Co., 120 Ga. 516 (48 S. E. 88). It is in the application of this last-mentioned rule that difficulties sometimes arise, as in the Deas case. In the instant case, whatever might have been held under the language of the original charge, the explicit correction was sufficient to cure any erroneous impression which might possibly have been received. Massie v. State, 24 Ga. App. 548 (101 S. E. 703).
(b) The excerpt does not afford ground for reversal on the theory that the jury might have understood the code section thus given to mean that the plaintiff would be entitled to recover, to the exclusion of the defenses which the defendant had sought to establish. The charge is not inherently wrong, since, as stated by the code, such a plaintiff may recover; and the bulk of the charge relates to the law of the case under the defenses raised by the plea. Everything cannot be stated at one and the same time, and it does not appear conceivable that the jury could possibly have understood that they were to ignore the defenses pleaded, about which the testimony pro and con centered, and upon which most of the instructions were based, and where, as is admitted, the right to a recovery is plainly limited under the charge by the defenses set up under the plea. See City Council of Augusta v. Tharpe, 113 Ga. 152, 153 (2) (38 S. E. 389); Bell v. State, 126 Ga. 568, 570 (55 S. E. 476).
[11] Decided December 14, 1921.
Rehearing denied February 1, 1922.
Action for damages; from city court of Bainbridge — Judge Spooner. April 25, 1921.
Hartsfield & Conger, Pope & Bennet, for plaintiff in error.
R. L. Berner, W. M. Harrell, John R. Wilson, contra.
Application for certiorari was granted by the Supreme Court.
6. Exceptions are taken to the alleged failure of the court to submit, on its own motion, (a) the distinct defense that plaintiff’s son did not intend to pay any fare, and hence had no right upon the train, but occupied the position of a trespasser, and (6) the law applicable to the issue as to whether plaintiff could recover, even though her son’s intention was to pay, if at the time of his death he occupied the perilous position of riding on the “blind baggage.” These grounds of the motion are without merit. The court clearly instructed the jury that, if the deceased boarded the train without the intention of becoming a passenger, he thereby became a trespasser, and the plaintiff could not recover. The court charged: “You look to the evidence, with an effort of determining whether or not he was a passenger on such train; see whether or not at the time he boarded the train it was then his intention to make himself a passenger and travel as a passenger to his place of destination. Should you find that he was, your form of verdict would be framed according to instructions previously given. Should you find that he boarded such train but had no intention to become a passenger, that he vacated the places which passengers are provided with, and placed himself upon some other portion of the train, I charge you that, should you find that to be the fact, he would have been a trespasser, and not entitled to recover.” In reference to the latter contention the court even went to the extent of saying in effect that his mere presence on the “ blind baggage ” would of itself make him a trespasser, and thus result in an absolute bar to a recovery. The court charged: “ Should you find from the evidence that the young man, the deceased, young Allen, went down to the depot with his companion, went aboard the train with the intention of becoming a passenger, and undertaking his transportation to his destination as a passenger of defendant’s train, but that he placed himself on what is known as the ‘ blind baggage ’ or in some other place which was not the place reserved for passengers and for passengers to ride, then that fact made him a trespasser, and the plaintiff in the case would not be entitled to recover a verdict for any amount.”
7. The evidence does not show the amount of the recovery to be excessive; and for none of the reasons assigned would this court be justified in setting aside the verdict and judgment.
Judgment affirmed.
Stephens and Bill, J.J., concur.