52 Ga. App. 127 | Ga. Ct. App. | 1935
The surviving children sued the railroad company for the full value of the life of their mother, who, while riding as a guest in an automobile driven by her husband, was billed on a public crossing by the impact of a locomotive drawing four passenger-cars. The automobile was traveling northward up the paved highway, and the train was moving at 50 or 60 miles an hour in the same direction. The car entered an unpaved road, at an approximate right angle to the highway, about 30 feet from the railroad-track, and started to cross the track at a speed of about 35 miles an hour. The mother was seated on the front seat at the right of the car, the direction from which the train was coming. The fireman sat on the side of the locomotive where the highway and automobile were, and the engineer sat on the other side. The fireman first saw the automobile when it was about 65 feet from the crossing just before it started to turn, and the train was about 50 or 65 feet from the crossing when the car
1. Under the Code of 1933, § 105-1306, if a mother dies, leaving children and a husband who lives even for a short time
2. Since the mother was riding as a “guest” in the automobile driven by her husband, without any right of direction or control by her of the machine, and since the evidence authorized a finding that both died simultaneous^, the right and amount of recovery of the mother’s children would be controlled by contributory negligence on the part of the mother, if this had been proved, but would not be affected by contributory negligence on the part of the husband driver, since the plaintiff’s right of action under the Code, § 105-1306, passed to them directly on the mother’s death, and did not come through the husband, so as to impute to them his negligence, which was not imputable to the mother. Therefore the court did not err in so charging the jury. See Southern Ry. Co. v. King, 128 Ga.
3. “Negative evidence does not amount to no evidence at all; otherwise the term would be a misnomer. And jurors are not obliged to discard it merely because of the existence of positive evidence in conflict therewith. ‘Where the existence of a fact was affirmed by positive evidence and denied by negative evidence, an issue was raised, and the trial judge committed no error in properly submitting such issue to the jury. Western & Atlantic R. Co. v. Mallett, 23 Ga. App. 367 (2) (98 S. E. 238).'” Georgia R. &c. Co. v. Wallis, 29 Ga. App. 706, 714 (116 S. E. 883). Two witnesses having testified in this case that although they heard, just before the crash on a public crossing, a distress whistle blown by the defendant’s locomotive which struck the automobile in which the plaintiffs’ mother was riding, they did not hear any whistle blown for the crossing (as required by the Code, §§ 94-506, 94-9903), or see any indication of steam from the whistle to indicate that it was blown, the jury were authorized to find that the defendant was negligent in not blowing the required crossing whistle, notwithstanding the positive testimony of the engineer and fireman that the whistle was properly blown.
4. The question as to the proximate cause or causes of an injury being for the jury except in plain and indisputable cases, and a guest in an automobile, having no right of control over the driver’s movements, not being affected in her right of recovery for a tortious collision by any contributory negligence of the driver, unless such negligence was the sole proximate cause of the injury, and there being no rule in this State that it is negligence as a matter of law for a traveler, not aware of the apprpach of a train,' to • attempt to cross over a public crossing without stopping, looking, and listening, but cases of this nature being generally each determinable under its own particular facts, the jury were authorized under the evidence to find that the failure
5. (a) A trial judge should “give the jury clearly and fairly the law applicable to the issues involved; and if he does this, his failure to formally state the contentions as shown by the pleadings will not, as a general rule, be cause for a new trial.” Macon, Dublin & Savannah R. Co. v. Joyner, 129 Ga. 683, 685 (59 S. E. 902); Central Ry. Co. v. McKinney, 118 Ga. 535 (45 S. E. 430). Where, in the instant' case, the judge, after summarizing the averments of the petition and stating more fully the allegations of negligence, fairly summarized the averments of the defendant’s answer, which, after denying generally the allegations of negligence, and setting up contributory negligence by the plaintiffs’ mother, elaborated in detail its version of the facts preceding the collision of its train with the automobile in which she was riding, it was not error to fail to read or state to the jury these alleged; detailed facts.
(&) Nor were the instructions relative to the alleged acts of negligence by the defendant subject to the exceptions that they intimated and expressed an opinion that such acts were in fact negligence, and were argumentative and prejudicial to the defendant. After stating that the plaintiffs “charge” the acts as alleged in the petition, and stating that “whether the defendant was guilty of these several acts of negligence or not is a question of fact for you to determine,” the judge, immediately following this lam guage, said, “It is for you to say whether, as charged in the petition, the defendant was guilty of these acts of negligence; whether it was a failure on the part of the defendant to use ordinary care in the operation of its train, it is a question of fact for you to determine.” Elsewhere he emphasized to the jury that they must believe from the evidence that “the defendant was negligent in some or all of the particulars described in this petition, and that such negligence proximately caused the death of the decedent;” and that if from the evidence “you say that the defendant was not
(c) While standard mortality tables are admissible in evidence as an aid to the jury in determining the life expectancy of a deceased person, the jurors are not bound, by such tables, but may use “any method known to them as upright and intelligent men” in applying their knowledge of the common phenomena and facts of human experience to the evidence, where sufficient facts appear as to the age, health, physical condition, and habits of the deceased to afford a basis for a proper conclusion. Central Ry. Co. v. Minor, 2 Ga. App. 804 (2), 807 (59 S. E. 81), and cit.; Merchants & Miners Trans. Co. v. Corcoran, 4 Ga. App. 654 (6-b), 669 (62 S. E. 130), and cit. Therefore the court did not err in charging: “You may use these tables if you see fit. You yourself can arrive at the expectancy of the decedent, if you desire to do so, under the facts in this case as shown to you, using any method of calculation that you know to be correct;” the verdict rendered not exceeding the amount claimed in the petition, and what the jury could have found even if they had followed the life expectancy shown by the tables, under the undisputed evidence as to the age, good health, activities, and earning capacity of the deceased.
(d) Exception is taken to the following charge, as erroneous and calculated to mislead and confuse the jury: “You will bear in mind, gentlemen, the rules of law given you in charge relative to a verdict for full damages in such a case as this, without deduction; and if you apply the rule of diminishing damages given you by the court, because of the negligence of both parties, then you would treat that rule as to diminishing damages as applicable to- or controlled by the charge on the general subject of damages, as to reducing same to its present value in cash.” Previously the court had charged the rule as to comparative negligence and diminution- of damages, as to the reduction in the plaintiff’s recovery if the deceased and the defendant were both negligent, as contributing proximate causes of the homicide, and if the deceased’s negligence did not amount to a want of ordinary care; and had also charged that, if the deceased by ordinary care could have prevented her death, the plaintiffs could not recover. Immediately
(e) There was no prejudicial error, likely to have confused or misled the jury, in the instruction that the plaintiffs “contend in this suit that, as a result of a collision between an automobile in which their mother, father, and sister were riding” and a train of the defendant, “their mother, father, and sister lost their lives,” that “the death of their parents and sister was caused by this negligence on the part of the train, and as a result of the hilling of thevr mother that they are entitled under the law to recover damages for that hilling.” The petition contained an averment as to the presence of the sister in the automobile and her death in the collision, which was also shown by the evidence. Although this reference to the sister was irrelevant, no harmful error appears in the mention by the court of this averment of the petition, to which there was no demurrer, since the language “killing of their mother” in close connection with the words “that killing,” taken with the otherwise definite and precise language of the charge, could not reasonably have been misunderstood by the jury as authorizing them to consider any death except that of the mother, in determining the issues as to the liability of .the defendant and finding the amount of damages.
Judgment affirmed.