*1 328
this respect judge to certainly function of charge grand sheriff prerogative not the jury, and judge’s charge charge either to interfere with it. Judge agrees views and has directed Frankum with these concurring he be 2 recorded dissent division opinion. 38583. ATLANTIC COAST LINE RAILROAD
COMPANY v. McDONALD. February Rehearing 24, denied Decided 1961.
March *2 Larry E. John Ben- Bennett, Pedrick, Pedrick & W. Bennett, nett, in error. A.
Benjamin Wilson, II, Leon contra. Smith, Jr., special ground motion Judge. first of the Carlisle, complains new trial judge of the failure trial charge request without employee charged duty with the of exercising safety. ordinary care for own This case, under the course, Employers’ is one Federal Lia bility Act. In charging jury applicable case, law judge said: “Gentlemen of the I the law referred Employers’ provides that Liability further in all [Federal Act] such actions the fact that employee guilty, have been may of contributory negligence himself, shall bar recovery, damages shall proportion be diminished amount employee. attributable . to such . gentlemen “Now, further jury, in reference contribu- tory just negligence, your which I have I atten- call referred, tion that you instruct remember that law under being negligence, suit is contributory tried any, part not be plaintiff, Mr. shall McDonald, recovery. a bar Employers’ Liability to his Under the Federal *3 Act the damages proportionate the amount diminution of is . . negligence employee. attributable of to the “Negligence the absence means of or failure the to*exercise the degree required by of care law to be exercised. charge you, gentlemen, upon
“I that de- duty is the ordinary diligence. fendant to exercise diligence degree “Ordinary of is which is care exercised prudent by ordinarily persons under the same or similar circum- stances. diligence negligence.
“The absence of such ordinary is termed degree “If the defendant exercised that ex- of care which is by ercised ordinarily prudent persons under the same or similar prevent circumstances to injury to be another, would not guilty negligence of in failure exercise ordinary care. degree other
“If, hand, failed to exercise care of prudent by persons which is exercised the same ordinarily under guilty negligence or similar circumstances, would be of failure exercise . . ordinary to' care. charge further, you gentlemen, injury joint
“I where the negligence result defendant or of some one negligent alleged plaintiff part on the by more of acts plaintiff, recovery by be plaintiff, may railroad and a there damages by proportion shall diminished be plaintiff. It is attributable to amount of plaintiff part on the only where act or omission no negligent sole if acts, any, cause when the defendant’s liability the defendant from is free part of causation Liability Act. Employers’ the Federal under charge you “I if you, gentlemen, find injured, negligence he solely by reason of his own cannot recover.” proper and sufficiently
These instructions were informed juiy as devolv applicable respecting duty to the law of care upon respective parties Employers’ Federal ing under the judge Liability Act. It been proper would have for the trial charged qualification duty have without devolved Plaspohl ordinary v. Atlantic exercising care. 491). (2) E. Co., App. 506, Coast Line R. 87 Ga. S. 2d ground This no error. of the motion shows grounds special
In the third second and of the motion complaint portions trial, following new is made charge: question charge you passing upon “I that in pain impairment suffering you may consider damage plaintiff’s body resulting from such injuries, you charge every find such the evidence. I person enjoy retain the law is entitled to each been power body may with every and mind wrongfully without being no one can endowed, answerable, deprive physical any power another or injury faculty or deprivation impairment materially impair Such the same. pain properly should be con suffering, classed respect. jury in determination sidered its *4 plaintiff jury, in the “Now, gentlemen addition, contends earnings another that he has suffered damage, as item of loss occupation February since 1958. being out of his usual by damages compensation given are as charge you, gentlemen, I plaintiff financial you the suffered if find injury, and occupation usual and means away from his by being loss if you the you evidence, and shown any period livelihood for you may award recover, otherwise entitled to find he damages earnings you him find as such loss of as he this instance. evidence suffered in gentlemen damage item which the “Now, another plaintiff is the claims which he to recover in this case and seeks alleged permanent impairment capacity. total earning and of his impaired, claims that his earning capacity has been you injuries will alleged and decide from whether the evidence his are injuries future; continue permanent, is, will into the they long lives, will as or they get continue as he whether will you well and leave earn him able to work and be- money; injuries lieve permanent, future, are or will continue into the long as lives, will continue as he and that would be entitled damages you to recover impairment, his future will determine, if the extent shows, impairment evidence of such and rea- upon facts you sonable make a can calculation as to the loss provided this specification, he is entitled to recover otherwise as given charge rules of law by the court.” portions excepted These charge to, the substance exception being authorized a recovery; double could recover jury and the could not award and damages pain suffering plain- based as the result of the ability loss and tiff’s labor earn also money, and damages earnings. award for loss of This contention with- out merit in in Jones v. ruling Hutchings, view of 101 Ga. App. 475), majority opinion 2d wherein S. E. opinion practically in the all of dissenting leading and subject Georgia important on this cases were reviewed Further review of those authorities here would serve discussed. purpose. no useful is,
In case case, pleadings where under plaintiff’s capacity and the evidence to work labor and money earn permanently is shown evidence to been impaired complained result of the tort as of, where plaintiff’s evidence further shows what the earnings before were injury nature extent resulting disability injury from the and otherwise furnishes facts from which com- can amount putation be made to the actual of decreased past earnings prospective, maiy authorized *5 case earnings. lost In this damages for special such award charges authorize sufficiently facts to shows so as evidence jury plaintiff’s claim to the submitting these elements to subject charge not, therefore, is for their and consideration, for a new grounds the motion made in these criticism trial. for grounds motion a special 5th and 6th 4th, objec timely over court, trial complain
new trial because counsel for the defendant, permitted for tions of counsel jury. The improper to the indulge to ground thereto argument set forth in each and colloquy material of the court and rulings each instance, as are follows: of counsel and court “ brought the Federal (4). This case [Mr. Wilson] It E. A. commonly called L. the F. Employers’ Liability Act, Code, Sections 51-60. in Title United States contained is of railroads Compensation employees Federal Act This is the engaged interstate commerce. proceed- sort of must at the outset understand
“You person ordinary law suit by ing is not. the same as an compensation the only This against negligence. is another for to a man. applies act railroad fully under- necessary is history this act
“The negli- action for ordinary an between it and stand the difference gence. a the need for it had become the passage act,
“Before national scandal. friend object argument my the line Pedrick: I
“Mr. give started history. for him He stating necessary it is facts giving which Was percentages, statement certain make a bearing on the that have case quoting statistics no evidence. stating object jury statement in his “We act, compensation is Employers’ Liability Act Federal passed is that first when the act was history and that of it scan- employees national respecting situation injuries were begun say to. switchmen dal, had None quote started to statistics. percentage, number or such object relevant, argument, we type argument. . . might good possibly I think be a idea “The Court: cases. out in other arguing leave to statistics *6 objecting Honor understand am “Mr. Does Your I Pedrick: argument? entire to his line of you
“The Court: Yes. Gentlemen of the not con- will your anything sider in deliberations that Mr. has Wilson jury stated in his remarks to the with statistics any reference to might that in other compiled have been cases.” (5) . By “Mr. Wilson: . . these rules three did immunity employees, secure an from suits of the railroad and because immune rules they were secure and behind those old protect of common virtually safety law they nothing did to' workers. you might are “Now ask what these three The fellow rules. servant rule was this: The master or employer never re- was sponsible negligence employee employee. of his or another responsible master not negligence wa's his an act servant committed another in rail- servant, and, therefore, injured road cases where one railroad through worker another his responsible. not the railroad first one. That’s the “The assumption rule, of risk which down from came the com- England dangerous mon law of that if a worker went onto job assumed that that job, he the risk of he not could complain injured. if he was
“Mr. Pedrick: if Your Now, Honor I want to don’t please, keep interrupting. just get want I this in the record, respect here with to the abolishment of the fellow servant rule and assumption the abolishment of the of risk rule bearing have no on there case; this pleading is no on part of the defendant fellow servant rule any assumption we risk, say, if Your Honor please, is highly this con- fusing argue things those are they not issue, only try intended jury are inflame the respect with to some- thing company responsible the railroad not is for. We pleading are not that, contending we are not for it, and we think case be on tried strictly issues as made pleadings in this case. evidence Your from the “Mr. is obvious Honor, Wilson: part made that has been of the defense case bring in these identical rules attempting are argu- connect non-negligence, different and we will this name necessary is I think Your Honor. up that, ment necessary think it is going cite the law. I for us—we enactment history understand behind for the this amendment under meaning law, we feel Now, is like being been tried and tried. law has able this with we to discuss our case very vital to citing am what the if I law jury. Pedrick, Mr. Again, argument. it in answer can any further? be heard Do care to “The Court: please: I’m not if Your Just Honor this, “Mr. Pedrick: in the I’m that are not of law case. argue on issues going to argue fellow going I’m not try him. going to answer *7 just It’s not assumption of in risk. or servant doctrine it should it, and, therefore, contending not case. We are now something that was in and argued as not be out. you that is intend to con- Well, your
“The contention Court: applied case. arguing as in this you with the law nect what are Honor—the applies Your case, in this “Mr. As it Wilson: Supreme Court—in which specific the court—of rulings of and not court may defendant come into have stated th.e non- name of under different principles these basic defend on negligence. proceed. I exception. you let his I will Note
“The Court: it. you will see how connect sir. right,
“Mr. All Wilson: “ assumption rule, risk back to of Now, Wilson]: [Mr. did not the rule which allow I was gentlemen, stated, against he entered employer his when employee recover an occupation. They in effect dangerous job stated, upon a or in dangerous that risk you if is assume —that stated —that rule contributory other employment. The taking by degree in negligent in employee was if this, was even not injury recover, he could about own bringing his negligent. also though employer was his these “Now of law have been abolished the F. A. by rales E. L. —the Employers’ Liability Federal Act. act later was The provides amended that the defendant ca'se bring his could subject in state court and is not to removal in the Federal Court.” (6). in order “Now, to understand better the reason purpose legislation passed which the F.E.L.A. like I would page to cite Mr. Justice U. Douglas, 53: S., designed ‘The on Employers’ Liability put Federal Act was industry arms, cost eyes, some legs, operation. purpose lives which consumed its The change act lift liability strict rule from injuries the employees prodigious personal burden of system placed had and to men who, relieve them, exigencies and necessities life are bound to labor from risks hazards ex- that could avoided lessened part proper employer ercise providing care on safe proper equipment the em- machinery with which ployee does work.’
“Mr. Pedrick: Now, Your hope Honor I please, my objection. last Counsel there excerpts other decisions, directly to the jury, so far as that Your goes, if things Honor please, proper. and those Justice Supreme general Court write in tries to term another injury eyes case about life limb and and feet—it doesn’t all, illustrate this case at and it’s and our argument, courts held; type and if I so continues my objection want on be continued that. to be
“The Court: Do want heard that?
“Mr. Your No, Wilson: Honor.
“The right, go Court: All ahead, you this, I will instruct Any you now: cite citations will be addressed to court—not to court presence in the jury. purpose change the act was to
“[Mr. Wilson] liability strict rale of lift from the employees to the prodigious personal injuries placed burden of that system which had men them, who, by exigencies to relieve and necessities of life bound to labor from the risks and hazards could be avoided or lessened exercise on the care part the employer in providing proper machinery safe and equipment with employee which the his work. does
“Now, gentlemen, digressing addressing my remarks to you you’ve for a few brief moments, heard your and I Want law, again injury to call attention if the negligence resulted from the one or of its serv- railroad, ants, degree in whole or in part, any negligence to attaches employees railroad of its is injury, then, you your incumbent on to return a oaths verdict in favor plaintiff in this case. "Now, going contributory negligence to phase, which says that contributory even if negligence, himself were and that negligent, negligence negligence combined with the employees the railroad or its produce to injury of which complains he in answer Mr. Pedrick’s —and negligent this man he because didn’t go clothes, off take his your I want gentlemen: to call attention this, He doesn’t carry lawyer around doctor his and his tell him what to do injured. when you he’s And must remember, gentlemen, this caustic material came him, injury; onto was the there there was the without fault negligence, part. own He right a he was; right had to where he be had what do did; he he was company there where told him and as be, result of this caustic material shot down on him. The fact that he prevented could have further injury by slipping his clothes body February from his weather himself holding up in some room close store that Mr. defense —that present. That Pedrick wants under the law. sufficient simply says employee’s It If this: own contrib- you right uted then injury, reduce that comparison be entitled recover amount negligence. “Now, take example: let’s an If found that a man was $100,000 damages entitled to worth of as a result of his in- percent juries, sixty negligent percent was forty negligent. The law simply would re- damages $100,000 to $60,000, duce and it would *9 338 Now, an amount. a verdict in such return
your duty example. just an and, entirely abolished, risk has been assumption of
“The you do not fall into careful, careful, be be gentlemen, into, fall cause will seek to Pedrick that Mr. trap of assumption make up other facts call these will he it another give He will it something else. will call risk—he back assumption of risk. Go but will still name, place established —to act was which this purpose employees, some its costs to the railroad some them. losses occasioned Why? he negligent. Because was not
“They claim railroad
risk.
way.
assumption of
That’s the
got
out of
Line
Rogers
the Coast
in
versus
non-negligence
stated
That’s
in
thing
very
they tried to do
Railroad
which is the
Company,
again what
we state
just
name;
it another
to call
case—
great
‘Unless
care
Supreme
United States said:
Court of the
charg-
by simply
be sacrificed
rights will
is taken
servant’s
no
another
assumption of risk under
ing him with
name,
”
law.’
under this
permitted
result
such
can be
make
hearing
jury
“Where counsel in the
statements
prejudicial
duty
in
matters which
is the
evidence,
objection
interpose
same;
prevent
and,
court to
rebuke the
all needful and
made,
counsel,
shall also
he
improper
remove
instructions
endeavor to
order
impression
minds;
discretion, may
from their
in his
or,
plaintiff’s attorney
offender.” Code
a mistrial
if the
is the
quoted
special
portions
81-1009. A careful
§
de
grounds
6 above will show that counsel for the
4, 5 and
timely
fendant made
of counsel
instance over
court,
effect,
and that
each
objection.
motion
counsel or motion
No
to rebuke
ruled
necessary
but no such motions were
made,
for mistrial was
question
propriety
present
order
as to
of such
for review a
(54
(4)
Brown,
Co. v.
126 Ga.
5
argument.
Ry.
Southern
1,
(188
466
108
State,
711,
Brooks v.
183 Ga.
S. E.
911);
E. S.
E. 2d
v.
210 Ga.
S.
752);
State,
Askins
A. L. R.
a new trial
471).
grounds motion for
These
before
record before this court show
there
no evidence
placed
and,
could have been
before
fact, none
*10
Employers’ Liability
regarding
of the Federal
history
the
questions
Act
behind
enactment.
had
reasons
its
Such
the
place
jury’s
the
as
the
this case.
no
in
deliberations
to
merits of
Stages
(46
(1-5)
Southern
2d
v.
Under the of Code 81-1009, of the duty § interpose court prevent argument prejudicial mat- ters are not in evidence. This duty specific ap- but a plication general duty judge irrespec- the trial to see, tive of the objections conduct of in making failing counsel or in to make that the objections, trial is trial fairly conducted. The judge is more than a mere chairman preserving order at meet- ing or a moderator “he debate, justice is a minister of Heard, govern duty progress with of a trial.” Heard v. App. 76). 99 864, Ga. E. 2d S. Code section re- charges ferred to specifically duty above him prevent- improper ing irrespective objection argument, opposing of an It though complained counsel. follows even ruling in special ground merely 5 was a conditional one permitting argument even though ground continue, and this fails show that specific objec- counsel for defendant renewed yet grounds they all tion, together when of these are considered show that for the at strenuously defendant was all times upon objections ir- objecting insisting to and to all improper relevant argument plaintiff. of counsel for grounds These not im- only further show that not evi- matters which were prejudicial related assignment an treated as will be grounds of these
dence, and each judge act in accordance trial of error failure of them harm- Each of shows 81-1009. mandate of Code with the § ground requires and each respect, error in this ful reversible in this case. grant new trial of a grounds Special complain 8 and 9 admission defendant of timely evidence over of counsel opinion evidence, testimony of two witnesses nature ex qualified these witnesses were being contended perts their express and, therefore, permitted Harden, opinion W. in the matter to which testified. R. plain been was shown one of the witnesses, engaged so applying coworkers with him in caustic tiff’s solution, engine at *11 washing lution off the time it the splashed the plaintiff’s injuries, which it contended caused was plaintiff. gone witness on direct examination This had onto the by manner method into considerable detail as the used to engine washing employees the to the applying in the solution along by engaged it shown evidence been off and was to have type period over a of several this work years. He asked if have furnished was could any employees this by doing kind of rain which if worn suit, against splashed provided protection being their job, would have was question with this On working while solution. rephrased rain have been merely was would a suit and he asked it replied he any protection to which job, for him on the special ground objected 8, testimony have In would been. job doing was to to the effect that a safer method would from en employees other to have stood back have been for engine gine them down. With while two of washed the one or ap it regard objected special ground 7, to the to evidence pears Harden was later asked on cross- record Mr. protective defendant other by examination for the what employees been for the would clothing say would have question have witness answered worn, to to they when washed the caustic had rains suits should have engines. regard objected evidence With solution off the
341 at record that again appears from the special ground 8, sub testimony witness was asked in his this point another substantially answer to question and his stantially same grounds, objection. These without was admitted same effect R. Louisville & Nashville Co. show no harmful error. therefore, (35 206); E. Holsenbeck (1) S. 2d App. v. 72 Ga. 769 McCamy, 348). (2) 2d S. E. Arnold, App. v. Ga. testimony special appears respect ground
With co- objected employee and was that of another fellow there ob- permitted over testify worker the plaintiff, who was onto splashed the solution, when jection, substantially, engine process being in the while it was washed off strength under certain of sufficient described was circumstances, shown “pretty cause bums.” witness was severe This competent been work and was familiar with the regard, experience in testify him to from his first-hand doing. testimony as the was This was evidence shows he de- question harmful defendant. The ultimate jury in the case was not whether the solution cided careful bums, or could not from a since, could have caused it must be all the said it was evidence, reality parties all the solution conceded used ques- engine capable causing burns, but ultimate was plaintiff, any splashed tion was whether solution onto the quantities and concentration so, and if whether in sufficient further, whether causal burns, cause such burns had connection condition from which with the *12 regard suffering. testimony then this in in The witness this jury’s prerogative. upon no the way encroached respect general the it to With to is sufficient grounds, that in addition the set the already to forth state facts above, in in evidence, many while conflict material was suf particulars, though ficient it not verdict authorize, demand, did a for plaintiff. Inasmuch evidence another trial may as that upon before the same as adduced trial of the case now us, any respect other unnecessary ruling to make with grounds. general Judgment reversed. Frankum Bell, Jordan, JJ., and concur. and Felton, Townsend, J., J., C. P. dissent. J., Nichols, dissenting. Presiding The fifth Judge, fourth, Townsend, all special grounds sixth motion for a trial amended new steps assign error on failure the court to' necessary take allegedly improper argument objections certain made to the juiy. first in error before counsel for defendant Counsel brought Employers’ that the case was under Federal stated Liability ordinary was an case but Act, and law case that compensation applying men; act to railroad' only necessary 'legisla- it was history for know neg- tion difference between and an ordinary understand ligence that prior passage of the act need action, Objection national had became was a scandal. made to compensation statement that the was act, any act need sit- going history the act, any into the to the fact other uation certain was scandal, national statistics counsel argument.” “about read” “his entire line of ob- and to This jection only was sustained extent that no com- statistics piled in jury. other cases should be considered Counsel proceeded then A. to- state difference between an F. L.E. ordinary stating case an master-servant case present act away did de- with three common-law assumption fenses: risk, fellow servant contribu- rule, tory negligence. again objected ground Counsel on the these were not in the interposed issues been as case, had not defenses, accordingly were in- irrelevant, confusing argument. flammatory Counsel then for the stated trying bring fact de- exactly defendant these fenses under another name, will non-negligence, and “we argument up connect this with Your Honor.” that, The court proceed, saying, then allowed counsel to “Your contention is you you arguing connect intend to what the law applied see ... I will how connect it.” this case
Counsel for then commenced the stated purpose Employers’ Federal Liability Act as stated objected again Federal defendant case. “it doesn’t illustrate case at all and it’s not argument, that type my objection continues I want to be con- tinued on that.” The court cautioned to address
343 con- and counsel not the citations of law court and but in the apparently court, tinued from the case, assump- expatiated further on the jury. then He presence of be saying: “Gentlemen, ended doctrine, tion of risk Ped- trap not Mr. fall into you do careful, careful, be call that he will into, to fall rick will seek cause assumption will risk—he up of other facts which make these not the railroad was They . . claim something call else. way. out Why? got of negligent. Because should non-negligence stated assumption risk. That’s That’s the is Line which Rogers Coast Railroad versus Company, just it an- call very they tried to do thing case— Supreme again what the Court name; other we state taken the servant’s great care is States said: ‘Unless the United assumption with rights charging him simply will be sacrificed permitted be such result can of risk under another and no name, this law.” under question a present objections interposed sufficient to were permit- court
for review court whether the erred as to argument” “line counsel for the ting the Supreme upon certain made—that that based decisions is, tried case was purpose the act which the Court, de- that such defenses, certain common-law was to abolish eo nomine urged permitted although not be fenses should contended, guise non-negligence, which, but under the Ga. jury. State, In Brooks v. 183 fact here was the before give a (188 711) it such an will 466 is held that S. E. v. right general State, rule in Smoot review; judge’s 715) will trial E. that in no case 76, 81 S. Ga. that an requested; further than going be for not ruling reversed grave and improper if remarks exception to this rule is nob a granted trial will whether or enough injurious new granted all though the court has ruling even invoked, and requested mistrial, grant short relief possible judge repair trial can grave no act injury is so that “even p. 469, there held, is also damaging effect. But re- follow review, does where there is a-basis court will con- In review this result. . . such versal together motion court, sider ruling of *14 appli- principles the From these, motion. cause of the error whether there is such be determined should thereto, cable as will a reversal.” cause
It the improper is not to allow counsel to read the law to Bar- jury. the presence court in Rome Railroad Co. v. of (2) 355). improper S. nett, 94 E. It is Ga. legal propositions jury. In Ransone v. counsel state to to making Christian, 351, it was held: “Where counsel is 56 Ga. legal legal argument principle a a which battling to establish charge must case, he wishes court to as the law he argue to court; suppose cannot intended to the we was . prevent jury. . stating legal propositions counsel from Counsel cannot know court will charge; they what the cannot they lay down he jury charge to law will unless as it, al- gifted must, be fore-knowledge; they be therefore, lay jury lowed to down to the the law which think law; will in other their or, words, court own view of charge, this light argue the facts. of law To curtail right compass suggested by within narrow ruling be to court below to mouth would close the counsel, by jury.” overthrow full trial all fair and The argument” “line ran the primary objection, or series of objections, argument. By valid line of was plaintiff sought counsel for plant in the jury’s mind it, three common-law defenses master-servant negligence to a case not available in an then case; sought F.E.L.A. to show urged the defense this defendant was not, it purported be, freedom from part. on its own facts appear that the case plaintiff, engaged who was injured scraping side an engine, was when an employee sprinkling potash the other side with water negligently shot acid over onto plaintiff, and also there an issue was of whether the have immediately protected him- self from injury by further removing clothing. Accordingly, the plaintiff’s “general argument” line be- differences —the tween this ordinary law case and an the law master- servant negligence case, was, line generally speaking, con- counsel to allowing there error in no was question case in reading of the tinue with it. Likewise, person it would take (although jury’s presence the court in the without done believe this was temperament naive on the “eavesdropping” the jury hope benefit of collateral began counsel error. If judicial language) not reversible practice objection directly re- have been appear to error does was sustained and the gross sufficiently impropriety peated. think do not We rep- that the court demanded right fair trial say that the ato. case to the read the commencing to rimand made, and the request reprimand where no for such App. 62 Ga. Baxley Bank, State Deen v. was in fact sustained. sixth fifth and 689). disposes of the (3) (8 *15 S. E. 2d This language used certain ground, As special grounds. to the fourth statement instance, counsel out of order—for had become the need passage “before the of this act, to a referred statement, however, national scandal.” This his- pointed out awas already counsel had state facts which than ago rather seventy years than existing torical condition more charge logically this present. at The jury could objection made, in the It in fact included defendant. re- neither court nor colloquy that followed part latter ruling the court turned subject, to that objection dealt with same objection. portion Another applies act compensation which statement only that “this is the if construed true man,” statement was may receive man only act which railroad mean is the specific injuries. ob- compensation for employer from his general merged in 4 became ground jections special out in set trial ruling argument” and “this line error. reversible did not constitute court thereon dissent. concur Nichols, J., J.,C. Felton,