The Western and Atlantic Railroad Co. rs. Young. child, there is little propriety in doing so; due care is always the better and more accurate description. Certainly extraordinary care, in any proper sense of the term, can never be exacted of young children, and slight diligence would often be due care on their part, when in adults it would be gross negligence. The comparative degrees, extraordinary, ordinary and slight, it seems to us, cannot be fitly applied to children in reference to measures to be observed by them for their own security. If such an application was suggested by Vickers vs. Atlanta & West Point Railroad, 64 Ga. 306, it was an inadvertence, not in what was said but in what was implied. Due care on the part of this boy might fall far short of that of a prudent man, and yet exceed that of average boys of his own age. According to the evidence as to his standing at school, he was much above the average of his class. 3. As to the charge of the court touching negligence as matter of law, the application of the statute and of the city ordinance, the duty to ring the bell and hold trains in check so as to stop them at street crossings, the duty to comply with the ordinance as to the speed of trains not stopped, and as to keeping watchmen or flagmen at certain crossings, and as to responsibility of the railroad companies for inattention or negligence by such flagmen or watchmen, (in respect to all which, see 25th, 26th, 28th, 31st, 33d, 35th grounds of the motion,) we have little fault to find. On these subjects we merely refer to cases already adjudicated. Atlanta & West Point Railroad vs. Wyly, 65 Ga. 120; Central Railroad vs. Smith, 78 Ga. 694; Georgia Railroad vs. Carr, 73 Ga. 557; W. § A. R. R. vs. Meigs, 74 Ga. 857; Central Railroad vs. Russell, 75 Ga. 810. We see no reason to doubt that a city which is the terminus of numerous connecting railways which interchange business within v 81-27 The Western and Atlantic Railroad Co. vs. Young. Of the corporate limits, may, by virtue of the usual grant of police powers found in municipal charters, not only regulate the speed of trains and moving cars, but prescribe regulations for maintaining the necessary flagmen or watchmen at 'street crossings, to secure the safety of the public, and that railroad companies, as matter of legal duty, must comply with such requirements and regulations, if they are reasonable. course, nothing unreasonable can lawfully be prescribed by virtue of general police powers, or if prescribed, can be enforced. The mixing up of flagmen or watchmen with the official police of the city is irregular, but seems to us not to vitiate an ordinance on the subject which railroad companies have virtually recognized and assented to, by employing and using as flagmen or watchmen, persons invested with general police powers, in addition to their functions as railroad employés. We will add that the style of the charge touching the city ordinances, was too absolute and unconditional, in treating them as law, without any reference to the jury of the question of fact as to whether there were such ordinances before them, and perhaps as to whether they were reasonable. The manner of dealing with the subject in the Central Railroad vs. Smith, supra, was more satisfactory, save that the ordinance involved in that case was not applicable to the facts. 4. On the measure of damages, see the 4th head-note. We think the court laid down substantially the correct rule in the 38th ground of the motion for a new trial, and in that part of the 40th ground preceding the instruction relating to the discretion of the jury in allowing interest. We regard what is complained of in the 36th ground of the motion as subject to just criticism, and we think it a sound direction to give, that this part of the charge be omitted on a future trial. A brief but Skellie vs. James. excellent model of a charge upon the measure of damages, where the subject of the injury was a child, will be found in Davis vs. The Central Railroad, 60 Ga. 329. The court erred in not granting a new trial, more especially upon the 40th ground of the motion. But we put the reversal of the judgment upon the whole case, and think its merits should be investigated anew, in the light of this opinion. As to grounds of the motion which we have not referred to, we regard them as free from substantial error. Judgment reversed. SKELLIE S. JAMES. 1. In a contest between creditors of the husband on the one hand, and the wife on the other, where a fraud is charged, and where the wife sets up a secret contract between herself and husband, the jury should be instructed to scan the transaction closely, and that the bona fides thereof must be clearly established. It is error to charge that the only difference between transactions between a husband and wife and those between him and third parties is, that the law requires that the former "should, perhaps, be looked into a little more closely" than the latter. (a) The facts of this case show that it is one in which the jury should have had positive and stringent instructions in regard to their scrutiny of the conduct of the husband and wife. 2. In order to render an attorney incompetent to testify, under the act of 1887, (acts, p. 30,) he must have acquired his knowledge from his client by virtue of his relations as attorney, or by reason of the anticipated employment of him as such. If he acquired the knowledge in any other manner, he is both competent and compellable to testify. January 23, 1889. Husband and wife. Bona fides. Witness. Attorney and client. Before Judge GUSTIN. Houston superior court. April term, 1888. A fi. fa. in favor of T. O. Skellie, issued on judgment rendered October 8th, 1886, against J. B. James, 81 419 90 772 81 419 93 653 81 419 e123 12 Skellie vs. James. claimed by Mary On the trial, the was levied on certain land, which was James, wife of the defendant in fi. fa. claimant introduced a deed executed October 3, 1884, by which her husband conveyed to her the land in question, amounting to 350 acres, the consideration of the conveyance being $2,275 paid by Mrs. James (part of her separate estate) and the assumption by her of a certain mortgage for $2,500 with interest, held as an encumbrance on the land. This conveyance was attacked by plaintiff both for inadequacy of consideration and fraud. Plaintiff showed that there was a good dwelling-house of six or seven rooms upon part of the land, besides out-houses and an orchard; and witnesses for the plaintiff estimated the value of the land, including improvements, at from $15 to $20 an acre. Upon the other hand, the evidence for the claimant tended to show that the consideration mentioned in the deed was a fair price for the land and improvements; that though when defendant in fi. fa. purchased it two or three years before he sold it to his wife, he had paid a higher price for it than that for which he did sell it to her, he endeavored to sell the lands or part of the lands he sold to her at as low or a lower price than he finally did sell them for to his wife. The testimony for the claimant further showed that the defendant was indebted to her, at the time of the execution of the deed, in a larger amount than the amount which was recited as the sum paid by her, exclusive of the assumption of the mortgage; and it was shown that the mortgage was afterwards paid by her. The manner in which the indebtedness of the defendant in fi. fa. to his wife arose, was as follows: In the spring of 1868, she loaned him $50. In the latter part of that year, he borrowed $30 from her. About the same time or a little later, she inherited from her mother $100, Skellie vs. James. which defendant also borrowed, and in 1870 he borrowed $500 of her money which she had inherited from the estate of Wiley Barron. This money he agreed to pay interest on, and she allowed him to use it in trading. He did so use it in the purchase of real estate and stock, taking the titles of the various pieces of realty bought and sold in his own name, with her knowledge and consent, and realizing profits therefrom, which they agreed she should have the benefit of, and in this way, at the time he bought the land in question and other lands, part of the same place, he had accumulated for her a considerable sum of money, which was invested in these lands. This money so invested and other moneys which he had borrowed, represented at least partly by the mortgage mentioned, went to make up what he had paid for the lands. He and his wife both swore positively that, at the time he made her the deed, he was indebted to her far in excess of the amount stated in the deed as having been paid by her, and this amount so paid was credited on the amount of his indebtedness to her; they also swore that when her funds were not invested he was to pay her interest on them (banking interest his wife stated), and when they were invested she was to receive profits. The defendant in fi. fa. also testified that when he made this sale to his wife, although he shortly afterwards conveyed to her all the stock, household furniture, and other visible property that he had, in his opinion he still had remaining enough property in the shape of notes, etc. to pay his debts. He did not specify what was the amount or character of the notes, etc.; and the plaintiff showed that he was indebted at the time to the extent of several thousand dollars. The bill of sale of stock, etc. was executed on the 4th day of May, 1885, and recites a consideration of $1,688 paid for said defendant by his wife |