*1 psychiatrist), was an Alabama would not have recommended re- lease potential because Reed “had the for violence. He was dangerous and it was . discharge repre- foreseeable at time of his . . that he danger persons sented a substantial or death injury coming with him.” question. contact That is not the Under the law then ex- tant, kept Reed not could be confined unless there had been “recent overt expressed acts or recent threats of violence.” There were none. Moreover, such concrete present manifestations had to a “substantial risk of imminent continuing harm.” The test for commitment was not dangerousness. foreseeable future then, unnecessary, question It is to discuss the proximate
cause, tort, the third element of since the record establishes that cannot reach stage development of their complaint. summary
On a motion for judgment, party may “an adverse rest upon the mere allegations pleading, denials but his re sponse, by provided affidavits or as otherwise . . . spe must set forth showing genuine there is a issue for trial.” (Emphasis cific facts (e). supplied.) OCGA 9-11-56 Dept. Transp., See Jahncke Svc. v. § law, As a matter of there are no material facts in dispute summary and judgment was mandated.
Decided December Agnew,
G. Michael appellant. for Dicus, Harry Denney, Bowers, John W. Michael Attorney J. General, Googe, Jr., James P. General, Attorney Executive Assistant Michael, H. Perry General, Attorney First Assistant Carol A. Cos- grove, General, Senior Assistant Attorney appellees.
70576, 70577, 70579. DOSTER al. et v. CENTRAL OF GEORGIA (three cases).
RAILROAD COMPANY et al. 70578. MIMBS v. CENTRAL OF GEORGIA RAILROAD
COMPANY et al. 70580, 70581. MURPHY v. CENTRAL OF GEORGIA RAILROAD (two cases).
COMPANY et al. Judge.
Beasley, This case arose out of a vehicle train collision which occurred grade County p.m. at a on June Putnam at about 11:30 pas- five occupied Doster by Ray truck driven pickup 1979. A children) thirty-sec- with the (his collided wife four sengers then crossing at a over the proceeding train freight which ond car of *2 result, the children were As a three of m.p.h. to five speed of three seriously child were remaining the killed the two adults and and injured. defendants, of Georgia Central brought against two
Suit was tracks, and Georgia of the railroad Company, the owner Railroad operator, alleging that both the owner and Company, train Railroad negligence and their the particulars in various negligent were plaintiffs.1 injuries and the physical cause of the deaths the complaints and denied material answered the The defendants discovery the pre-trial cases lengthy protracted averments. After and defendants as to in a verdict for the jury resulting were tried The this court followed. enumera- plaintiffs. Appeals each grounds. seven appeals the been combined into tions of error for have eyewitnesses no to the collision. None surviv- There were immediately the collision ing plaintiffs preceding recall the events The event. train- no of the train witnessed actual member crew passed the train lying by man saw track as on the caboose a truck help. of the crew who called for Be- and notified the other members evidence, extensively relied cause dearth of direct both sides of this upon opinion testimony and circumstantial evidence their expert or negate efforts to establish fault. is appeal
1. The motion to dismiss the denied. appellees Corp., Brown v. Assoc. Fin. Svcs. comparative judge’s charge negligence assigned
2. The trial as The first three of that read: charge error. sentences
“(1) you negligence If find that of either or both of the de- if fendants, any, negligence plaintiff, any, if was less than the of a you then in If find plaintiff that event that could recover. that defendants, any, either if was equal negligence or both of the to the of plaintiffs, event, if any, plaintiff then in that that cannot recover. defendants, If you either or if negligence find that both of any, plaintiff, any, if then greater negligence than of a killed, Doster, Ray minors who were Amanda and were children Two of the Jennifer Mimbs, offspring Margaret Doster his The then wife. other two children were Doster’s prior Thus, marriage Murphy. plaintiffs brought to Brenda the six actions which — 70576; personal Ray Margaret Ray injuries were: his Doster for Doster and Mimbs as — parents their and administrators of the estates of Amanda and Jennifer Doster for deaths — 70579; 70578; Margaret personal injuries Murphy 70577 and Brenda as Mimbs for her — injuries 70580; Murphy personal next Doster for Brenda friend of Daniel custodial parent Anthony Anthony inju estate of Daniel and Doster and Administratrix Doster’s — Anthony ries to Doster and the Doster Daniel death of plaintiff recover, event that could recovery but the amount of would be reduced the degree of negligence chargeable plaintiff.” to that The plaintiff contend that a would be from barred re- covery only if his negligence equalled or exceeded the negli- combined gence of the two defendants. It is urged charge in question include, to, failed to or important refer principle and was mis- leading, confusing, incomplete and prejudicial.
We do not reach the merits of this because, enumeration regard- less of whether the instruction not, stated the law correctly or plaintiffs could not have been harmed.
The judge trial charged general principles of negligence and instructed them that unless found the defend- ants or either of them negligent, their deliberations should cease should find for defendants. charge then included the principle that even either both defendants were negligent, unless found such negligence to proximate be the cause of the inju- ries to the then plaintiffs could not recover and the verdict would be for defendants. The law regarding plaintiffs’ negligence or *3 lack of care was charged charge and the on comparative negligence given. The jury was then instructed on imputable the law neg- of ligence possible and its application to Doster’s wife. The court charged specifically that as to the minor child who was injured, fault parent or guardian imputable was not or chargeable to the child. jury
The returned a verdict for the two defendants against all of the plaintiffs including the minor child and estates of the deceased children, minor all to whom negligence was not attributable. Under the instructions such finding, necessity, of was that the defendants negligent were, or if they that their negligence was not the proximate cause of injury. would have never reached the point of comparing negligence if they since had done so there would have been a verdict for the minor child and the estates. This situation is analogous to the maxim that defendants, where a finds for er- rors an instruction on damages are harmless. See Black v. Ault- man, 826, (6) (172 App. 826) 120 Ga. (1969); 829 SE2d Fulton Nat. Bank Marshall, v. 745, 225) 245 (1980). The jury verdict reveals the instruction complained of could not have affected the outcome since the jury did not reach point a at it which would have applied. been In reversible, order to be harmful, error must be ground thus this is Thompson without merit. v. Crouch Con- tracting Co., 532, (2) (297 164 Ga. (1982); Fulton Marshall, Nat. Bank 745, 747, v. supra. 245 Ga.
3. One of the major issues concerned whether the defendants negligent in failing provide to warnings and illumination at the crossing site or on the train. The argued that the dark night, Ray prevent to background combined and the dark the dark train train until being able to see the from Doster, pickup, the driver of the condition of of that because They contended it was too late. provide a better the defendants upon was incumbent crossing it i.e., of instead actually provided, system than warning present. have been should and flashers” sign, “gates merely crossing by plaintiffs new trial motion for in the amended As recited side would men- that neither before trial stipulated had parties “[t]he site made at the collision measures subsequent remedial tion the concretely are not stipulation terms of The exact the defendants.” However, stipulation is con- transcript. forth in the record and set apparently was of the trial and during the course stantly referred to the trial court’s furnished the basis of parties and understood orders Moreover, record contains two several occasions. ruling on in limine. The first motions Georgia Railroad’s sustaining defendant plaintiffs re- any evidence motion to exclude upheld order cars. The material on the train of reflectorized garding the absence offering or from both defendants prohibited order second subsequent alteration argument concerning or evidence either scene. which was the collision railroad involve the exclusion through error six Enumerations of two indirectly directly or related either evidence or which rule, general evidence As a involving remedial measures negli- in a is not admissible repairs following injury an subsequent such evidence is to show purpose since the usual gence trial Fuqua Chastain negligence. admits recognizes defendant 679) (1980). The reason Indus., 156 Ga. policy “that men public lies on sound excluding such evidence from improve, repair, or and not be deterred encouraged should be into an so their acts will be construed it the fear that do &c. Georgia Southern R. wrong-doers.” been admission that had Cartledge, SE Co. v.
Nevertheless, repairs changes while evidence *4 having in not done prove negligent not admissible to was defendant occurrence, remedial something prior to the evidence of See purposes. for certain other may measures be offered and admitted (306 (1983) Co., Mfg. Brooks v. Cellin that other to rebut evidence where such evidence was admissible by showing that buildings similarly constructed not burned had con- change to show that changes had been made. Thus evidence of a might original incident ditions were not the same as at the time in- properly ordinarily provided was have been admitted Brooks v. it was purpose structed as the limited for which received. 397; Carriage Phillips, Inn v. Co., Stuckey’s Mfg. supra Cellin at However, case, insofar as the record reveals there was a that forbade the introduction of evidence this nature stipulation provision purpose. stipulation having sought for its without Without to set aside modify sustaining or amend or and the order the de- stipulation limine, fendant’s motion in were bound their any purpose. that such was inadmissible for background, With this we now consider the individual enum- erations. permit
4. It is contended that the refusal to cross-examination of expert defendant’s witness two documents was error. At the time the witness was asked about one document he stated that he had presence plain- not seen the document before. Outside the tiffs’ counsel stated that he was offering prove through the railroad company’s forwarded, own man that his recommendation forwarded, whom it was and that recommendation was made after the gates accident to install nation of the quiry and flashers at the based exami- correctly The trial court further in- forestalled stipulation. because it violated the appears Moreover, from counsel’s statement it that what was sought proved to be were recommendations made someone who was not a witness in the case and examination of a witness who expressly purported report containing stated he was not familiar with such proper Thus, recommendations. no foundation was laid for questioning its introduction or of this witness about it. by permitting testify,
5. Did the trial court err a witness to over objection, experiment as to an he conducted at the collision site? plaintiffs, trooper Brown, who was a witness was the in- who vestigated original par- collision. He was asked defendants to ticipate experiment shortly concerning in an before the trial how far using headlights in advance one could see the train at the scene pickup visibility truck, is, what was the train’s a train. In brief, the to his on cross-examination was that insufficiently the conditions were similar.
It is true that there were obvious differences conditions at the experiment time of and the conditions at the time when the truck judge permitted However, and train collided. the trial subject limiting purpose permit- to instructions its changes ted on scene, redirect to show which had occurred at the such background vegeta- as the fact that the of trees had thinned and the heavy. brought tion was not as It was further out that there was now paint trooper white on the road. The testified that there was no illu- headlights experiment mination other than the truck when the type conducted, driven, the same truck was the railroad car was type actually stopped, nighttime dark, same roadway but was it was asphalt angled same,
was still there were trees *5 398 approached the as he
area, bright headlights and he used compari- in something is used that where recognized rule It is a necessary point that it is to illustrate a condition son with another Webb, Sammons v. 86 substantially similar. such conditions be (1952). (71 832) the trial (6) It is within 382, SE2d 388 App. Ga. testimony shows the ex- the determine whether discretion to court’s point the fairly illustrate conditions which periment was made under 352, Hudson, App. 2 354 Co. v. Ga. & Point R. in issue. Atlanta West every in (1) (58 500) (1907). exactly or “The facts need not be SE accomplish similar; sufficiently to the if are similar particular issue of fact consider the assisting intelligently the to purpose of controversy, in the evidence is special point in presented regard to the 372) (185 275, State, App. 276 SE v. admissible.” Miller (2) (245 13) 827, (1936). Collins, SE2d App. Harris v. 145 Ga. See rarely if ever be ex- (1978) reenactment can recognizes . The law similar, will the sufficiently be it aid actly identical but that such original the truth of the incident. factfinder to determine court, it was coupled limiting instructions of the When with testimony experi- permit to as to not an abuse of discretion 446) 439, 444 Sellers, App. Delk v. 149 Ga. ment. See (3) (1979) Oates, ; 156 Ga. Meadows physical changes jury’s . Even without consideration location, stipulation, in by defendants at the deference to made proba- sufficiently give experiment similar to the conditions quality. quantity leave to the the extent of its tive value and Furthermore, subject given by an- the same witness, Winchester, interposed. The other to which no erroneous, even if is not revers- objection, admission of evidence over substantially same evidence is admitted without ible error where Sales, Eiberger v. Martel Electronic objection. in failing court erred to sustain the mo-
6. Plaintiffs contend the questions concerning in to dis- open tion to declare the door rebuttal envi- changes similarities due to made the railroad rons, it the time and date of the comparing and conditions at simulation with the scene at the time and date of the collision. excluding motion was made as an alternative to as to simulation. Winchester, two Trooper
This enumeration concerns Brown and the truck respect witnesses who the simulation with described impact area. It is con- lights and the distance one would see at permit ques- plaintiffs’ the court erred in motion to denying tended from the time of the colli- tioning as to all the differences at the scene experiment sion until the time was conducted. fact, changes
In at the trial court did not exclude evidence as questions permitted about the ask the scene since presence background, moon, the vegetation, trees than the illumination other sources of and about weather conditions ruling making judge the wit- headlights. noted that The trial plaintiff originally considered and then called ness Brown was the *6 surprised ruling the not were that the in the context modify suspend previous yet or effort to evidence, stipulation made no had ruling it, his As we construe measures. about remedial permit questions change but did not evidence of did not bar therefore only stipulation. prohibited The as remedial measures about trooper, respect plaintiffs’ with of the on the examination limitation to the stipulation. experiment, Plaintiffs that it not violate investigating preparing of- in for trial that the have discovered could ficer, purported and that witness, simulation had conducted the their they place remedial-type so. Yet in when he did measures were some stipulation application arrange the effect or of their did not to limit ground object was asked on when their witness and did not cross-examination to describe the avoid the they
experiment. Instead, tried to experiment. they stipulation him examined about the when assuring such its enforcement. Under The court cannot be faulted deny plaintiffs’ circumstances, alternative motion. not error to it was testimony excluding opinion urged in the trial court erred It safety crossing night by question. in of the on the fatal two witnesses as to the testimony Keuper proposed ground concerns the This objection no clear was made there was and Holmes. At the time the showing in their would be. defendants as to what their might speculated be forth- to what inadmissible evidence testify testify prospect might coming, primarily focusing on the that Holmes might procedure Keuper practice while as to the railroad’s based inadequate view, and, in criteria that on limited defendant’s place crossing argument out of the was unsafe. Extended took presence jury theories were advanced and of thé which various possibilities raised, and the of the extensive countered. As a result may ruling lengthy ensued, not have the trial court’s which discussiort pre- perfectly parties. were Plaintiffs contend been clear to the ruling opinion obtaining However,the did from of Holmes. vented testify- only prohibited Holmes from not foreclose this but ing “procedures policy” which he of the railroad with as to the Keuper, ruling not voice was that he could was not familiar. As to contrary opinions safety im- to the duties which were as to measures rely. posed by There on which he chose law or to the authorities opinion give ruling as to the could not was no blanket that he plaintiffs, safety uncertain Moreover, were of the inquired rulings, imposed never about as to the limitations during of the two wit- examination tested their extent basis to conclude Thus, is no clearcut nesses. there of the two opinion introducing evidence prevented from night on the safety as to the expert witnesses question. it affirma- error to show upon party alleging
The burden is Powell, Ga. Campbell record. tively Forrester, 829) (1950); Smith v. their exhibit consist- it was error to exclude 8. Plaintiffs contend cars with reflectorized mate- photographs showing five railroad ing of rial on their sides. excluding photographs because their ad-
We find no error on the motion for limine which contrary ruling mission was to the of reflectorized material on evidence the absence forbade the train. photographs also be noted that made
It should law, of errors record. Since this is a court for correction part of the upon and not briefs of upon our decision must be made record Foods, 142 Sunnyland Belluso v. counsel. *7 (286 8)
821) (2) (1982). (1977); State, SE2d v. 248 Ga. 689 Collins 385) Goerlich’s, v. 112 Ga. 376 SE2d See Smith (1965). Moreover, they depicted, what their rele- as we understand vancy is at best. doubtful The last enumeration asserts error in the trial court’s sus- plaintiffs’
taining objection closing argument reprimanding an to counsel was that there was no testi- counsel. The defense mony support argument. point, plaintiff’s to At that counsel de- opportunity thereupon reprimanded, clined an to be heard and was agreeing lacking. the court that the evidence for it was be respond regarding The failure to can considered as a waiver the issue. But even if this were not true the sole issue now raised is that there was evidence to sustain the assertion that the railroads poverty necessary in that not afford the pleading could is warning signals. The evidence to which reference made concerns testimony by expert policy defendant’s witness that costs affect deci- regarding safety testimony sions measures taken. The addressed gen- policy concerning safety programs eral considerations traffic and did in specifically companies not relate to the defendant railroad this inference, permit, case. Thus the did not as a reasonable that the absence of devices at this was based on defendants’ monetary excuse that lacked resources for such devices. More- over, coupled it counsel it with a reference to misleading was because costs, though the “excuse” governing authority’s obligation as talking were a lame one. But what the witness had been about safety program, expenses government not the for which the would responsible. be Deen, J., J.,
Judgment specially. concur Pope, P. affirmed. specially. Pope, Judge, concurring
While I
in
reluctantly
must
judgment
majority,
concur
point
I write
to
in
2 of
separately
my
out that
concurrence
Division
majority opinion
only,
is
than an
judgment
agreement
rather
expressed
my reading
proce-
with
rationale
therein. Under
case,
dural realities of
er-
plaintiff’s
the merits
enumeration of
ror
charge
are not
comparative negligence
reached
only
this case
during
charge
plaintiff’s
because
conference
counsel
expressly
fact,
In
agreed
given.
charge
that
it be
now complained
began as
request
charge
offered
one of
defendant
rail-
roads. The
charge
given
product
is the
of certain amendments
made at
plaintiff’s
the behest of
counsel
explicitly agreed
was,
him. The giving
thus,
of this
very
acqui-
instruction
at the
least
in by
Oliver,
esced
counsel. See also Irvin
I am authorized to Presiding state that Deen Judge joins in this special concurrence.
Decided December Rehearing denied December Brown, S. Phillip appellants. for Hall,
F. Kennedy Jr., Jesse Copelan, Dodson, Carr George G. D. Lawrence, III, Wallace Miller appellees.