The morning news. [volume] (Savannah, Ga.) 1887-1900, 1888-04-13
THE SUPREME COURT.
Decisions in Cases Appealed From the
Eastern Circuit.

DECISIONS In Cases Appealed From the
Eastern Circuit.
The Supreme Court in affirming the judg-
ment of the Superior Court in the Fogarty
case has handed down lengthy decision
in which it deals fully with the case.
Judge Simmons in two of his foot-notes
says:
1t does not sufficiently appear that because of
public excitement, imfammatory. false and
misleading accounts in the newspapers, etc,
defendant did not have a fair and impartial
trial. No notion for continuance was made on
these grounds; besides, the evidence not only
authorized but demanded the verdict
The jury recommended the prisoner to mercy
and the court sentenced him to ten years in the
penitentiary-half the time allowed by the code.
While it is true he may be afflicted with cpl
lepsy, there is no other place for him to receive
punishment than the one prescribed in the SEN
tence He was guilty of a most outrageous
violation of the law and must suffer the con-
sequences. He does not appear to have been
sentenced to a cruel and unusual punishment.
In reviewing the judgment of the City
Court in the SANDER suit of Undertaken
Henderson versus Undertaken Fox, Judge
Blandford, in his foot notes on the case,
says:
That judgment in former case between the
same parties shall be conclusive in another and
later case, it is necessary not only that the par
ties but the point in issue should be the same.
If the judgment in the former case could have
been reached without the point in issue in the
latter being directly and necessarily passed on,
the judgment is not conclusive as to that
point. Hence, where Fox sued Henderson
for Islander because Henderson had said
Fox was thief and ought TO be in the pen
itentiary. and Henderson pleaded justification,
and introduced testimony to show that Fox
who was the bookkeeper of the partnership be-
tween them; had collected civers amounts, and
had retained them and failed to pay them over
or enter them upon the books of the firm, it
was error to hold that a judgment in a former
suit by Fox VS.. Henderson for indebtedness
growing out of their copartnership business
which had been dissolved, to which Hen
derson pleaded that Fox was indebted to
him for amounts collected by Fox and not
paid over or accounted for and in which
cause the jury found in favor of Fox, was CON
elusive against Henderson in the SANDER suit.
There was no adjudication in such former suit
as to Fox having collected the money and ap-
prOpriated it amino fOrandi; that question not
being involved aud not being material While
the plea of justification is, to some extent an
aRgravaton of the text, yet where the defendant
introduces testimony tending to sustain that
plea though IL rails to make 1t out, the jury
may take such testimony into consideration in
mitigation of damages.
In the case of the Savannah, Florida and
Western railway against Goss, the 1udg-
ment of the Superior Court was affirmed.
Judge Blandford's foot notes read as fol-
lows:
was employed in rolling car wheels connected
by aXles, on a temporary track in the machine
shops of the railway company; that the work
was under the superintendence of Dillon, that
portion of the men put the wheels
on the track and the others rolled them
down the track, which was inclined for some
distance to the shop; that Goss was one
of the latter gang; that the wheels
would roll down of their own momentum
unless "scotched" or cut" that while Goss
was thus employed, and when he had reached
the bottom Of the incline with wheels he was
conducting, other wheels rolled down upon him
and crushed his foot; that Dillon had been told
that he had better put a man there to chock the
wheels to prevent an injury of this kind. and
had done So but had ordered the man away be-
fore the injury occurred; and that when Goss
took hold of the wheels he was guiding, there
were no other wheels behind him on the track
and no one was in charge of the wheels which
struck him. the evidence fully sustained yer
diet in favor OF GoSs. ,. II was not error to ad-
init the testimony of one OF the men employed
in the work to the effect that he told Dillon
before GoSs was injured, that he had better put a
man at the place where Goss got the wheels, to
chock them, and that if he Cthe witnesS) were
injured he would lay MIN out. The testimony
tended to show negligence ON the part of the
company.
Judge Simmons says of the Central
Railroad and Banking Company's case
against Smith. in which the City Courts
Judgment was affirmed;
The evidence authorized the verdict The
case made by the evidence is substantially diff
ferent from that made when this case was here
before (16 Ga. 209), and the remark made then
by the court as to verdict for larger sum
than was found for the plaintiff below on the
last trial, being so excessive as to disclose
either bias in his favor or prejudice against the
defendant is not now applicable.
While remarks by the court to the Jury upon
the rules governing common carriers in regard
TO passenger trains, and the duties they owe to
passengers in taking them on their trains and
transporting them, and In letting them off the
trains, did not throw light upon the case on
trial, the defendant below does not appear to
have been injured thereby.
Where the question was. whether the defend
ant was negligent in stopping the cab Of its
freight train near 10 a dangerous retaining wall
and leaving the plaintiff, who had been allowed
TO take passage on the train without light and
without notice Of the dangerous character Of
the place, it was proper TO charge the jury that
when the defendant brought the passenger to
the place where the train was going, all il was
bound TO do then was 10 see that he was ford
ed reasonable immunity from danger, and rels-
enable protection in getting away from the
point where he had been landed.
The illustrations used by the Judge in his
charge to show what kind OF care must be ex-
ercised by the railroad company under differ
ent circumstances, contain sound law and were
apt illustrations OF the ideas intended to be
conveyed.
The complaint being not that the plaintiff did
not have proper facilities for getting on aud off
the car, but that the car was stopped near a
precipice without light and without notice To
the plaintiff of its dangerous proximity it was
not error TO modify "a request to charge which
was, in substance, that the road is not bound to
make landings or any provision for the recep-
ton and discharge of passengers we're none are
expected to be.
Under the circumstances mentioned above.
the company was bound TO exercise reasonable
care and diligence with reference 70 permitting
the passenger to leave the train where they put
him down. Railroad companies are not bound
to take passengers on their freight trains hut
when they do, and rece We their money they
must not set them down in dangerous places on
dark nights without light and without notice of
the danger
While the testimony Of witness that he had
fallen off the wall where the plaintiff was in
jured was Of doubtful admissiblty, unless the
testimony went further and showed that some
responsible officer of the company had notice of
the fall, and perhaps then it would have
been admissible only ~ show. not that the W.T.