*1 judge that trial to see brief evidence duty of the in properly ordered the statement inserted and he complete, (Ann.) observed 6-801. It be Code should brief of evidence. § difference reading preceding headnotes there is vast colloquies counsel in with made between statements self-serving declarations ad in their nature are court which attorneys imputable their clients. missions of judge was, trial as disclosed Having determined that should be ruling the matter that record, correct his we are evidence, and excluded from the brief con- included no petition mandamus nisi shows strained to hold petition is denied right the writ issued. The writ and the to have dismissed. Judges
All the concur. RAILWAY ELLIS SOUTHERN COMPANY. 36839. Judgment Adhered 24, to on Decided October Rehearing 18, 1957. November Qgg *6 plaintiff in error. Adams, McDonald,
Isaac C. Adams & Kinney Pittman, Pittman, Pope, R. Carter & contra. contends J. trial court
Quillian,
testimony of
excluding
witness,
erred in
J.
Noble:
D.
saw,-—well,
fireman
me
he
this is the statement
“The
told
*7
slumped
track in the
sitting
he made:
'I saw the man
on the
position/
just
slumped
and he said he
saw the man in a
over
the man
the train
position
over
and that
heard
and turned and
late;
an
said
looked and it was too
he made
effort to move. Pie
get
coming
up—looked.”
and started to
he heard the train
objection interposed
testimony
it was
The
was
objected
testimony
hearsay.
opinion
are of
that the
We
part
gestae
holdings
under
in the
was admissible
a
of res
as
(12
Sheppard,
751,
Travelers Ins.
v.
Ga.
cases of:
Co.
85
755
(5);
18);
State,
Mitchum v.
205);
Tucker,
Treating the contentions referred to in preceding division in reverse order from stated, we will consider the question plaintiff’s as to whether the prima evidence was facie proof negligence charged, acts and whether the defend ant’s evidence vindicated failing its trainmen of to exercise the degree required of care of them. us Let first state the rules questions which the conclusion of both must be arrived at.
The rule is ancient and well founded that the duty owed trespasser wilfully not to' injury upon inflict him after his presence known, becomes or should in the exercise of ordinary prudence be known to the defendant premises whose he *8 Pope (94 comes. v. Seaboard Ry., App. Airline 21 Ga. 251 S. Chattanooga Railway 311); E. &c. Co. v. Wallace, App. 23 Ga. (99 57). Compatible 554 E. with S. this rule another; is that employees charge engine where railroad of an know that the general publici is accustomed to cross the railroad tracks and duty anticipate presence are under the the people to of there, they ordinary injury must exercise care pedestrians to avoid to pass customary place. who over at the the tracks Wise v. Atlanta Co., App. (1) (6
& West Point R. 16 Ga. 372 S. E. 2d 135); (162 Western & Atlantic R. Michael, App. v. 44 Ga. 503 App. (7, Ry. Tudor, Co. v. 46 Ga. 294);
S. E. Southern 98). 13) (168 10, S. E. principle knowledge the of the rule latter rests imputable place crossing of is
presence persons at such usual of they being people generally because aware that trainmen, to the point passing such of is tantamount to know- may expected be at the given approaches. a time when train ing they are there at permitted engine that he In this case the testified pathway about one hundred feet from to round the curve appearance former was, holding on the upon which he under anticipate presence of here, duty under to of the easel deceased, speed a public including the at of members of the thirty-five per hour, though miles he was at the time thirty to disposal equipment his not, use of the at aware that he could or even traveling, at the much speed and at the the train was engine a hour, bring stop miles to short per of ten speed less injury persons passing to across pathway to avoid so as E. App. 781, Pollard, S. the tracks. Wilson 12, Ry. Sharpe, Co. v. 2d In Central of 427) “Although the cases we have E. 2d this court held: herein are no means all of the decisions reviewed and cited problem presented, writing here for the have dealt with the which voluminous, nevertheless particular branch of the law on this what been said that counts of the plain it is from has both¡ forth a cause of action. Whether the petition in this case set licensee, invitee, place he was at a trespasser, a deceased was alleged, impliedly invited had, railroad under facts where the tracks, place a where the and at servants him to cross locality populous considering fact that the was a company, town, incorporated considering limits an and one within a crossing, duty were under to frequency of the use might upon be the tracks. Under someone such anticipate that operating find that jury might be authorized to circumstances hour speed per of 70 miles amounted a failure at a the train safety of those the servants ordinary care for the who exercise might crossing. anticipate be Under were bound servants, that the under the it is immaterial these circumstances until they did not see the deceased petition, allegations per traveling at 70 that, miles from him just 300 feet wrere *9 697 they hour, had than three seconds in less which to slow stop or give the train warning or to the deceased a approach. their On contrary, such facts are a circumstance which tends to show that defendant’s servants failed use ordinary care anticipating might that someone be the track point, at that and for judge these reasons the did not in' trial err overruling the general demurrer.”
This engineer, admission of the authorized more, without a finding prudence that he ordinary opera did not exercise in the engine, tion of the and as held under similar circumstances Georgia Ry. Southern & Fla. Co. Wilson, App. v. 93 Ga. 94, 111 (91 71) E. 2d negligence part. S. was sufficient evidence of on his Here it must be observed that one operates who a locomotive engine speed or drives a motor vehicle at that he cannot such bring the same a stop within the distance dictated ordinary care proper voice does not have immediate or con conveyance trol whatever be its Brewer James, nature. v. 267). App. (46 76 447, E. engineer 452 S. The 2d testified upon approaching crossing yards from some distant place where he the deceased was killed sounded the horn of profess locomotive. He did not remember whether he rang engine’s equipped bell or whether it even with a plaintiff’s bell. A witness seated in an point automobile at a crossing between the at which the stated the horn was pathway sounded and the where the de contends the killed, ceased was engine’s that he did not hear the horn stated ring blow or its bell and that he could have signal heard either had given. engineer’s testimony it been on this was posi issue tive, plaintiff’s negative. The rule is well witness established jury may accept that a negative and believe pref evidence in positive. Ry. Climer erence to v. Southern Co., App. 782); Callaway Cox, (1b) E. “positive S. E. 2d While evidence” the words used were opinion pronouncement in the its of the law was sound. We are plaintiff’s aware and considered have the facts that the witness engaged admitted that he in conversation with another might engrossed. in which his interest have been officer But protested that, still bell witness had the horn sounded weight rung, probative he would have heard the same. The value of his should been jury. have left to the In *10 Ry. v. Southern Co., App. 407, Ellis S. E. 2d 541), respect it held: among was “The evidence in this showed things person only other that a who was a few hundred feet away from the the not hear ringing scene of homicide did the of any blowing any bell or the the train of whistle until after struck Mr. Ellis. be evidence This would some that the bell was not being rung, and the evidence such to make a was otherwise as jury required issue as whether the circumstances it to be rung ordinary operation in the exercise of care in the of the Georgia Ry. train.” Wilson, App. Southern & Co. v. Fla. Ga. 94, 112, supra.
The evidence as a whole showed that the defendant’s servant charge engine ordinary its failed of to exercise care in the particulars discussed, alleged petition which were in the as some of negligence plaintiff’s right recovery the acts of which on the predicated. was
The
that
proof
defendant contends
offered no
allegation
sitting
that
the deceased was
track
railroad
approached.
when the train
In making
contention was,
this
it
course,
testimony
assumed that
of Noble was properly
opinion
excluded. In the first division of this
we have held that
erroneously excluded,
Noble’s
was
and hence it must
sufficiency
be considered in passing
plaintiff’s proof.
on the
of the
According
v. Milikin,
(3)
Richardson
came him. question
We next consider the plain as to whether the entirely prima tiff’s evidence failed prove allega facie pathway tion that the deceased on the when engine appearance struck him. On the former of the case we decided adduced plaintiff, evidence substantially review, same the trial as we now to prove sufficient (cid:127) prima every allegation petition. facie material Ellis v. Ry. Southern Co., 407, supra. The defendant insists presence pathway of the deceased on the alleged previous was a material averment. It is obvious that de cision is the of the case issue. law as to this But if this was not true another case on similar and in principle facts identical *11 the at bar Georgia with case has been decided. Southern & Ry. Fla. v. Wilson, 94, supra. Co. testimony that the of one of
The defendant contends its wit- night tragedy scene on nesses the the of the was who visited by engine the deceased struck evidence that was the conclusive beyond pathway traveling in direction the train was the the petition. pathway alleged as in the not the The witness beyond pathway 47 body he about feet the testified that saw the signs closer he observed of blood point and at a about five feet the on of the rails. We think evidence no more one signs where that the locus of the collision was the indicative crossing. impact blood than at the That the were discovered engine engine propelled the the and carried the deceased improbable, is no than as held him feet more Wilson traveling case under similar circumstances that the train there carry knock per at 45 50 miles hour would the deceased steps. sign of blood at the distance of 25 or 30 The stain or a pathway place point on the rail between the and the where the body lay the deceased was was not at all conclusive that at that engine place by engine. when The momentum of the struck probably swept would more than not have him from the actual spilled point quickly of contact too for blood to have been his course, question jury there. what Of it as to weight given mentioned, would be to the circumstances and as they ponderated. which
Distinguished counsel for the defendant calls attention to the appearance fact that on' former of the case it was held that proof presumption plaintiff’s by was aided arising under 94-1108 Code and invokes the rule that when the railroad § company employees neg introduces evidence that were not its ligent operation presumption in the train the disappears. only applicable testimony The rule is when defendant’s shows guilty any negli that the trainmen not acts of were gence alleged by petition and relied on recovery. Georgia Ry. basis of Southern Fla. Wilson, & Co. v. App. 94, supra; Atlantic Co. Thomas, Coast Line R. App. 477, testimony of S. E. 2d The disprove support tended to- rather than that under the operated speed circumstances related him he train at a greater ordinary than he should have in the exercise of care. negligence alleged petition. was one of This the acts of in the though speed This is true him testified not as toi high alleged petition. as that in the were of fact that
There issues should have been submitted to jury, in directing hence the trial court erred the verdict. Judgment Nichols, J., reversed. concurs. Felton, J.,C. con- specially. curs
On Motion to Rehear.
majority opinion
in this case
J.
holds that it
Quillian,
error for the trial court to exclude the
was reversible
*12
as
the fireman of
train
of the witness J. D. Noble
to what
the
position
him with reference
the
on the railroad of
crew told
to
hitting
for
reasons:
deceased, just prior
him,
the train
two
to
part
gestae. Secondly:
the res
It
a dec-
First: It was a
was
explain
opus
dum
and admissible to
laration made
fervet
engineer.
crew, including
train
that of the
conduct of the
was
at the exact
it is true that
witness 'Noble
not
While
tragedy occurred,
track when the
he was
spot on the railroad
thereto,
contradistinguished
however,
proximity
in
and as
close
v. Brunswick &
R.
Weinkle & Sons
Western
from
cases of
471)
v. State,
Henderson
Co.,
Perhaps it is well to very observe that the proof elements of bring the testimony gestae of Noble within the res are rule absent in the case of Weinkle & Sons v. Brunswick Western R. Co., 367, supra. In the case at bar the conversation occurred within three to five minutes after the deceased was killed investigation an being conducted while; witness, policeman. In (pp. the Weinkle & Sons 370, case 371), it is said: “Unless declarations were *13 engaged made he in while was the transaction of some business talking company person of with the with whom he was the accom scope authority, within the or were declarations of his by discharge imposed some panying duty an act done him in of company, of the the evi him in his relation as a servant not rejected. dence should been It is was inadmissible and have engineer made pretended made the were that the statements any in in course of transaction with the witness relation to the company’s and therefore such business, statements do not permits of that rule which the declara come within reason against principal agent tions of an to be introduced his when they statements opus. are made dum Were the fervet engineer part gestae of the res so as to make of occurrence distinctly appear them admissible for that reason? It not does lapse killing in the record what of time between the of was the engineer the mules and the and the conversation between the witness; appear but does it must been such a from what have lapse not, any of as declarations sense, time that the were contemporaneous killing with the act of the mules. The wit present occurred, ness was not the time the collision and at that it be inferred motion for a is to from what stated new upon the scene such time trial that when witness arrived had fully elapsed position that the was in a to- realize consequences resulting company from killing to subject mules, and that therefore the occurrence which was the past.” of the conversation was in the Kemp 465) Ry. Co.,
In E. Central Ga. self-serving not disclose statement record does made engineer, repeat, which a witness undertook to engineer’s the time the occurrence to which the statement near investigation any referred, during it was an or under made exception to the bring any circumstances that would it within authority contrary hearsay anything rale. The case is not original opinion. to the rule laid down in the previous appearance of this ruling made' on the Moreover, competent in the record was sufficient evidence case that there adjudication jury an that the state- take the case Noble, J. fireman, testified to D. by the defendant’s ment made to his statement Had the value. probative was of any exception under hearsay not admissible been *14 hearsay probative have had value, rule it would no when even objection. ruling The then reversing admitted without made grant a the trial court’s of nonsuit is conclusive that the state- by by fireman and ment made the sworn to Noble not was mere hearsay ruling former is the evidence. The law of this case.
Judgment rehearing. to on Nichols, J., adhered concurs. Fel- specially. C. concurs ton, J., concurring specially. J.,C. I think the court
Felton, ruling testimony erred in that the J. D. as of Noble to the what fireman told he evidence, witness that saw was in the admissible opinion. question the dealt with in division one of the The court ruling seems to have based its on the fact that the statement gestae theory part was of the res and also on the that it was hearsay explain but motive, admissible to conduct and ascertain theory testimony etc. Under the first the was properly excluded & Brunswick under Weinkle Sons v. & Western Co., R. (33 471), Kemp Ry.
367 Co., S. E. Central 122 of (50 465). testimony Ga. 559 E. was not S. admissible under theoiy by the second because the statement the fireman did not explain the conduct or illustrate the of motive case, under the facts of this shown as not that the fireman it.is engineer. communicated what he saw the to See Henderson v. 638). State, Ga. 680, S. E. 2d was The evidence not the substantive admissible show that deceased fact sitting was on the tracks with head in his hands. his Hix Green Co. v. E. Dowis, 2d appeal
On the that, former of this case this court held “The evidence in this case tended to show and would have authorized jury plaintiff’s to find that the husband suffered some mental physical collapse or which him or caused to sit lie defendant’s tracks.” in On trial treated that decision there objection testimony was no to the said, as to what the fireman objected dealt above, objection with if the trial to on was exceptions. waived a failure file a cross-bill con So, sidering holding, testimony the above even if the of J. D. Noble inadmissible, there would jury still be a issue whether the negligence lying deceased’s precludes track recovery. I do think not that the fact this that court assumed that testimony of J. D. Noble admissible in view of the fact presented made it the law of objection it was to us that no I think was admissible. do not that case that the evidence goes far, especially principle of the “law the case” that the) indisputably hearsay not evidence involved is since course, majority Of if ruling this case. shown hearsay, expressly the evidence was not had ruled this court change ruling. not we could now ruling our in the former consideration of
I think that under
directing
railroad
erred in
a verdict
this case
court
properly excluded
D.
I think the court
J.
but
fireman
to him.
as to what the
stated
Noble
*15
MACHINE
MOUNT.
36912.
NOVELTY
CO. v.
GEORGIA
note,
J.
notation
note constitutes
C.
1. The
on a
“This
Felton,
all
equipment
a lien on
fixtures and
at 268
268
Grill, Williams
'
mortgage
Street,” is sufficient
constitute a valid chattel
upon the
67-102. The
property named therein. Code
de
§
key
scription contained a
would be sufficient with
which
adequately identify
property
aid of
extrinsic evidence
mortgage.
(1);
covered
Rogers,
Green v.