*1 denying did not err for a trial court new the motion trial as amended.
Judgment JJ., Townsend and concur. Carlisle, affirmed. 35462. ATLANTIC COAST LINE RAILROAD COMPANY
et al. v. CLEMENTS. Rehearing denied 14, July 1955. Decided June *3 plaintiffs error. Kelley Walters, for in Peacock, Perry, & Reynolds, W. Robert contra. error plaintiff in is referred J. In this
Quillian, defendant in company and defendant or railroad to as the plaintiff. error general grounds, a new contained the usual
The for trial motion eight special grounds. the motion a new trial asserts ground The fourth respect charging jury: in “With that the court erred equipped with be requirements that all motor vehicles must charge I ahead, feet capable revealing object an five hundred knowledge that substantial ob you following: is common It coloring coloring, and the composition or jects, because of their greatly they obj rest, are visible upon the surface or ect upon degrees lights are thrown them. varying when artificial necessarily clearly They visible.” not are ' language approved charge complained of is in the exact Co., Doby W. L. Florence Const. by this court in the case of Doby came to Ga. 2d case sustaining judgment court exceptions trial court proved might pleaded language be demurrer. We held a barricade showing why did not observe across a motorist traveling. did hold that the lan We on which he was road given charge jury. guage appropriate to language employed appellate courts It been held that has rulings argu often their is demonstrating the correctness of charge jury. objectionable *4 and mentative otherwise (51 Hudson, v. Ga. 108 E. Point Co. 123 S. & R. Atlanta West many appellate our 29). it been held times instance has For danger, place a and one a track is that railroad courts that going place that he is into goes bound know thereon is who dangers operation incident to the subject to the he is where judge trial track; is nonetheless error for a it upon that trains R. & language. Western Atlantic Co. charge jury such (39 802); A. E. 54 L. R. Western 708 S. Ferguson, 113 Ga. 17). (96 App. E. 22 Ga. 313 R. Co. v. S. Jarrett, & Atlantic 455. Probably in no instance is the rule here referred to more ob- viously applicable appellate than an court on that rules may pleaded be proved. and particular To hold that some may matter pleaded proved and certainly authority is not that the trial may charge court in his intimate it that has been proved.
One of the vital issues of the instant case was whether the cars on the fog crossing, obscured avers them from view coloring his were of composition such that lights artificial automobile did not reveal them at a sufficient distance to bring enable him automobile to stop colliding time to avoid with the train.
We think that charge excepted subject to is criticism that it intimated an the evidence that established either or cars on the coloring account their compositon clearly were not as under visible artificial objects. were other com-, ground
The fifth of the amended motion new trial plains charged that the court in reference plaintiff’s right damages to recover complaint automobile. The is that there was no evidence to warrant charge. purchase price an prima facie, automobile is but
conclusive evidence, of its value at the purchased. time it was Nashville, Chattanooga Ry. v. Bass, (123 &c. App. 32 Ga. 729); City S. E. v. Cotton Belting States Co., &c. of Jeffersonville App. (118 442). 30 Ga. S. E. always It is relevant, but, standing is not alone, sufficient as parties. to third & Collins R. Glennville Co. v. Beasley, however,
We think price, plus evidence of the make, model, length ownership and amount of use of the by the automobile together plaintiff, picture with the of the vehicle introduced in support evidence is sufficient to a finding by jury as to market jury value. A is in absolutely no by opinion event bound evi dence, everyday objects, as to such as automobiles, they may draw experience from their forming own estimates of market (Ann.) value. See Code 38-1708, catchword “Knowledge.” § vigorously is pressed testified that only automobile worth being $600 before damaged, and $600 thereafter. The had just testified only a short *5 paid $2,900 for the automo- occurred, he before the collision time 7,000 miles. and had driven it bile not affect the suffi- tongue slip of witness does A mere the meaning fact, the proof particular ciency of as of evidence apparent and understandable. is the of complained for a new trial of the ground motion
The sixth timely request written defendant’s the refused the court charge Code jury, you that charge jury: of the I the “Gentlemen 'Every follows: motor Georgia part Code is in 68-316 § highways the State public operated streets vehicle located near side headlights, with front equipped two shall revealing person, vehicle or front, capable extremities of the charge in darkness.’ I hundred feet ahead object at least five dis does not you in that the Code section further this connection unexpected objects expected tinguish between reveal requires unexpected that would above Code section hundred feet ahead in the darkness.” objects least five at adjusted presented that was principle, a sound request The been proof, and in our should have pleadings and charge jury. given to the charged juiy: ground complains court
The that the seventh automobile circumstances, the driver of under the this “Whether you determine, under of the negligent is a matter for all was negli- and, negligent, he was whether his case, if evidence this proximate The cause of collision.” gence the sole was correct, charge but not that the is that other complaint is given jury. been Under should have pertinent instructions (4) (108 Payne 312), E. S. authority Young, ground is without merit. hold the we are constrained to trial eighth motion for new was without ground of the picture complained certain of Mock Road at that a merit. It was evidence. One occurred offered where the collision amended, negligence alleged petition in the grounds of “ negligent (h) that defendant was in remov Plaintiff shows was: approximately one signs its situated ing glass reflectors from crossing, afforded him from the would have hundred feet presence picture train.” The was as to the notice some company sign posted by railroad near show offered picture equipped reflectors when the was crossing with at of the collision There evidence the time there taken. sign. were reflectors on the no here, excep abandoned defendant, error judgment overruling general special taken its
tions *6 petition. demurrers to the petition no general a demurrer a is overruled and
“Where to law exception thereto, taken the decision becomes the of the is petition determination that the case and it a conclusive sets is out overruling If after the the demurrer the a cause of action. of plaintiff substantially proves his proceeds and the trial, case to a in & laid, he is entitled to verdict his favor.” Western case Morgan, 611, Atlantic Railroad v. exception allowing the was taken to orders two amendments
No petition. prima plaintiff facie entitled to a in favor The was verdict his proved petition, if he case as laid in the amended unless the facts allegations by developed by the the petition, not revealed of but proof guilty negligence debarring that he was of his showed his right recovery. plaintiff’s defendant contends that the
The evidence did not entitle him to recover in the case for the that it reason disclosed part amounting a failure ordinary acts on his to exercise care protection person preservation of his and for the his automo- (a) negligence bile. These acts of were: that the did not crossing sign observe a railroad erected the State feet from crossing (b) occurred; the where the collision that the crossing that there was a railroad vicinity was aware the upon traveling the road he was and nevertheless continued to travel high speed impaired by at with his vision fog, or smoke; mist (c) that the drove his automobile on the occasion under investigation objects with that did reveal at a distance (a) 500 feet in violation Georgia of Section 68-316 of the Co'de. (This repealed in section was but was force at the time arose.) the instant case testimony plaintiff’s sign was that he did not posted see crossing from
90 feet because he was at time following keeping and another vehicle a lookout on the road ahead; sign reached the second he had seen the train across endeavoring bring and was the road his automobile stop to a colliding to avoid with the train. order jury for the question case it was of this Under facts negli- signs constituted see the plaintiff’s failure to whether negligence was negligent, his whether part, if he was gence on his defendant, whether the fail- equal or exceeded that contributing cause proximate signs was the ure observe the collision. the contention We now consider conditions, when, account of crossing, on a railroad showed visibility poor. was on the road he vicinity and plaintiff testified that crossing a short traveling except at the location
was clear, but that when he night distance from crossing he from the 100 and 150 feet between reached crossing from fog his haze and that obscured into the drove crossing from view as curtained the Vision; that had presence was not discoverable along and its he drove the road right “he it.” expression, own until, use his *7 phe- is rather nature such a condition in the order of While impossible. according experience, human to not, it is nomenal fog he after reached the further testified that plaintiff distance between the stop automobile in the short could appreciative crossing. are and of the We aware and the through heedlessly fog, one who drives holding of this court that arising from recklessness. the risk his own smoke assumes (cid:127)haze, or jury testimony in case it was for the to decide But under the prudence of reasonable plaintiff by could the exercise the whether fog lay ahead the of him on road that the have ascertained driving through it. avoid time to power range the testimony in reference to or of the only lights plaintiff’s own. He testified was the
plaintiff’s automobile lights requirements did conform with the that his automobile standing still they the automobile was statute; that (cid:127)the light objects casting a that would reveal at a capable were automobile in motion feet; when the was 500 that distance of objects expected 500 feet and reveal distant would likewise lights lights away; pick up feet would objects that unexpected according speed to the at it varying distances objects at susceptible evidence was to the Thus the traveled. lights objects would reveal at automobile’s that the construction only 250 under feet under conditions and feet other some However, open the añore rational inter- it is also to conditions. testimony referred to was his pretation that what witness’s expected unexpected objects capacity a driver to see own according whether the autoanobile was varying distances at anticipated presence their in motion whether he still or reason expect them. This is true for obvious did not to see expectation obj could entertain no the autoanobile ects roadways driven, in which it was and the might appear sense, expected common illuaninate lights as a anatter of would, unexpected at the distance. objects same interpretation jury, evidence for the We of the was think they meaning that, given if it under and even construed condi- did not conform tions, of the automobile to the statute, for them of the it was still to determine standards whether negligence driving proximate of the was a or con- tributing injured in which he cause of the collision was and his damaged. autoanobile sharp
The evidence was as to whether there conflict was density crossing of sufficient in the area of the make it neces- sary employees, in order they for the defendant railroad’s prudent pea-son circumstances, would in like act as reasonable warning traveling public give unlighted train highway, gravel there approach across the whether plaintiff’s ability ba-ing that affected the his au- stop crossing, before it reached the tomobile to as to whether ordinary prevented exercise care could have between his automobile and the train, the collision and as to negligence and of whether the the defendant *8 caused collision. There was also evidence toas the extent plaintiff’s injury. of the finding was evidence áuthorized the
There that of verdict for compensation plaintiff the amount recovered the to for the injuries physical him. sustained R.
The case Atlantic Line Co. v. Marshall, Coast 89 Ga. 228) involving E. 2d was S. one the saane incident plaintiff in passenger as the instant case. The that case awas for present injuries the automobile and sued sus- with the train. We held tained in the collision in that case that verdict specific sufficient sustain the for the evidence was not opinion. The evidence in the Marshall pointed the reasons out general pattern we now the same as the evidence case followed analysis A exceptions. careful and minute review, with notable respective two shows that comparison the records of the cases par- different in material proof present in the case is the offered in the Marshall case. In that case held ticulars from that we what the that the evidence not sufficient to show extent was visibility testify driver. did not fog impaired the of the He seeing density fog prevented it him from of the or that that highway. the His that the train was across present he, “a haze” the road. In the case on there sort fog plaintiff, that the train from his vision the swore the obscured seeing prevented from it. him Marshall that the evidence did suggested We in the case not fog vicinity crossing the was in the show that the that employees negligent simply bringing were the railroad’s crossing. stop present in the train to a on case clearly appear fog by his evidence made it that the did en- own velop crossing. pointed in Marshall case that the driver
We out testified preceding passed he an automobile him the road at that only from the when the driver turned his point 135 feet bright, upon dim and first observed the train lights from again opinion read “it would be em- crossing. Here well to testify did not degree the fact that the driver as to the phasize (the In the case the impairment of vision.” instant driver) up fixed at which he turned at same positively swore did affect his feet, about 150 prevented visibility seeing extent it him from the train highway. across Marshall case we called attention the fact
In presumed that of'the driver was preceding the car to- driver of lights capable revealing the law with in obedience to drive safely and it could feet, distance of 500 assumed that train a at in which the automobile Marshall was driver of the case) (the have plaintiff could seen the train riding across “Besides, distance. The continues highway for that testify did not not see the train could 'Clements *9 merely fog, haze, that feet or because of the etc. He stated less may have away. feet attention did not see it until 130 His passing the in front and not on the road been toward car directed n ahead.” plaintiff unequivocally testified could In case that he . approach- before for four or five hundred feet not see train crossing. ing the an precision enough the fullness
Singularly with by special pointed out a pleadings amendment to meets defects deficiency in the supplied every demurrer, plaintiff’s proof by opinion in the was called evidence to which attention Marshall case. testimony plaintiff is intended.
No criticism of the His adverse by of the former given him on the trial applied to the evidence materially did not con- case, distances except as his estimate of flict with it. every phase as to of
However, had there been a conflict given him when a witness testimony with evidence recovery. right case, preclude Marshall it would in the a v. Pav- only witness. Scott Powell affect his credit as It would Duggan, (159 895); Tarbutton ing Ga. S. E. Co., 43 (3) App. 31 de- influenced our details Incidentally, there were some in this are absent from the record previous case that cision in as witness the trial instance, testified case. For overhanging the branches of the trees the former case that the approached the train from his vision as he road obscured the trial no mention of the trees crossing, but on the of this case made. judgment not- carefully motion for a reviewed the
We have trial and are withstanding the verdict, in ref- denying it. What is written error in court committed no notwithstanding the verdict judgment for a the motion erence to grounds of the motion for a new trial. general disposes of Gardner, J., Carlisle, P. Judgment Townsend, reversed. JJ., Felton, J., C. dissents. Nichols, concur. dissenting. denying I think erred in the court J.,C.
Felton,
notwithstanding The tes-
verdict.
judgment
for a
the motion
vague,
contradictory,
uncertain and
timony and under
rule
cases, construing
this testimony against
such
“
him,
against
a verdict
him was demanded.
'The
party
who offers himself
as witness
his own behalf is to
strongly against
most
him
construed
when it is self-contra
*10
dictory,
equivocal.
vague,
& A. R.
or
W.
Co. v.
96 Ga.
Evans,
Freyermuth
481
S. E.
v. R.
494];
107
32
Co.,
Ga.
S. E.
[23
[32
Ray
668];
Green,
v.
463 Approximately A. Sergeant Clements? train, observed Q. you sir. . . So saw fifty feet, and ato hundred hundred your bright Ser- lights, on immediately upon putting train object.” I saw A. some Clements? geant chargeable not crossing was near the gravel on or The loose Code purpose of negligence. the defendant against crossings the maintenance require and 94-504 is 94-503 §§ “necessary for a condition as is approaches thereto such conveniently.” crossing safely and off the get a traveler (160 (8) App. 152, 44 Ga. v. Ry. Dumas, Ga. Co. Central of (196 (5) App. 565, 573 Boatwright, v. 814); Pollard Ga. Spearman, R. Co. Line 215); Atlantic Coast E.S. gravel ap on the of loose presence (1) E. S. it and inconvenient unsafe crossing did render proaches crossing. get on off a traveler to *11 REALTY COMPANY. TEAGUE v. ADAIR & LOAN 35623. Rehearing denied July 13, 1955. Decided June