155 Ga. 579 | Ga. | 1923
Lead Opinion
This was a suit for damages against a railway company engaged in interstate commerce. The petition alleged, that petitioner was a brakeman on one of the trains of the defendant company; that his duty at the time and place required him to climb over and between the cars of the train, cool off hot boxes, and generally to look over and inspect said train and see that no “brake rigging” was down and that said train was in good order; that at the time of the accident the petitioner, after having cooled the hot boxes on said train, climbed up the ladder of one car for the purpose of crossing said train, as was usual and customary, to cool off a hot box on the other side of the train and inspect the same, when, without any warning or notice thereof, and without any signal, the engineer in charge of the running of the engine of said train started said train with a quick, sudden, violent, and unnecessary jerk, and petitioner was thrown from said ladder to the tracks below and injured. There were allegations of other acts of negligence, and allegations in regard to the exercise of care and diligence on the part of petitioner. The above statement is sufficient to afford a clear understanding of the assignment of error dealt with in this division of the opinion. Error is assigned by the plaintiff in error, defendant in the trial court, on the following charge to the jury: “ I charge you further that if you believe from the weight of the evidence that at the time of the accident there was a rule of the defendant company known to the plaintiff, forbidding the employee of the company from going between the ears to work on the same, while the train was standing, without first notifying other members of the train crew, and that the plaintiff violated this rule and was therefore injured, he cannot recover for such injury from the defendant company. But if the evidence discloses that such rule was habitually violated with the tacit approval and acquiescence of the employer, the defendant in this case, the employee is not guilty of contributory negligence in crossing his train or in working upon the same without
In our opinion the charge is subject to the last two criticisms, and the error is sufficiently harmful to require the grant of a new trial. It is unnecessary for us to search through the brief of evidence in order to determine whether or not a correct charge on that subject was authorized by the evidence in the case. In the latter part of the. charge of which complaint is made, and where the court uses the words, “if the evidence discloses that such rule was habitually violated with the ta.cit approval and acquiescence of the employer, the defendant in this case, the employee is not guilty of contributory negligence in crossing his train or in working upon the same without first notifying other members of the train crew,” the court invaded the province of the jury. This amounted to an instruction by the court to the jury that certain facts enumerated would render the acts of the plaintiff consistent with ordinary care and caution, where in the absence of the enumerated facts the same acts of the petitioner would have constituted negligence. The court should have submitted to the jury the issue for their determination whether employees of the company frequently or customarily disregarded the rule with the knowledge of their practice acquiesced in by the com
' Error is assigned on that portion of the judge’s instruction to the jury where it was stated, in substance,- that if the jury found from the evidence that the plaintiff, while engaged in his duties as an employee of the railway company, and without fault on his part, undertook to pass between the cars of the train on which he was at work, and- while so doing was injured, and that the injury was caused by the negligence of the defendant or its employees “or” in any of the ways alleged in the petition, then the plaintiff was entitled to recover. The criticism is on the use of the word “ or ” instead of the word “ and.” The Court of Appeals held that the charge in the respect mentioned was inaccurate, but, considered in connection with the entire charge, the use of the word “ or ” instead of “ and ” would be taken as nó more than a palpable slip of the tongue, not calculated to mislead the jury, and therefore not prejudicial error. Since the judgment will be reversed for the reason stated in the preceding headnote, we think it is sufficient to say that on another trial this inaccuracy will be corrected.
Another ground of complaint was that the court erred ill allowing the plaintiff’s counsel, while arguing the case before the court and jury, to read to the court in- the hearing of the jury certain extracts from other designated personal-injury cases where there1 were large recoveries and the cases affirmed by the Court of Appeals. Counsel for the defendant objected to the reading of these extracts in the hearing of the jury, because they threw no light and were irrelevant to the law of the case, and were only read for the purpose of calling the jury’s attention to the large verdicts rendered. No motion for a mistrial was made, but defendant’s counsel moved the court to retire the jury while plaintiff’s counsel read the extracts from the decisions. This motion
The sixth paragraph of the'petition for certiorari is as follows :■ “ In< the seventh ground of petitioner’s motion for new, trial is set out the entire charge of the trial court on the.measure of damages, and complaint of error thereon in the follpwing respects : ‘ The jury was instructed by the trial, court that as elements of -damage plaintiff could recover for his pain and suffering as to which the law declared no standard except the enlightened conscience of impartial jurors, and that the jury may classify an impairment of ability to work and labor as an element of damage, and that it might be considered by the jury in connection with pain and suffering.’ The court in the said charge nowhere instructed the jury that as to loss of labor in the past and an impaired ability to labor in the future- the measure of plaintiff’s damage, was the value of his time lost and to be lost. Movant insisted that the charge was incorrect,. in that the only measure of damage given by the trial court to the jury on the subject of lost time, past and .future, was the enlightened conscience of impartial jurors instead of the monetary value of the lost time,, and that this charge was error directly contributing to the large verdict rendered against your petitioner. - The Court of Appeals ruled that, your petitioner’s contentions in this respect were un
The eighth ground of the amended motion for new trial is as follows: ' “ The court erred, as movant insists, in charging the jury as follows: ‘ The defendant insists in this case that if there is any liability upon it, which they deny, as you understand, gentlemen, that the plaintiff was guilty of contributory negligence; in other words, that the plaintiff’s own negligence caused his injuries. I charge you, gentlemen of the jury, that contributory negligence under the Federal employer’s liability act, under which this suit is brought, involves the notion of some fault or breach of duty on the part of the employee; and since it is originally his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use.
Judgment reversed.
Concurrence Opinion
concurring specially. I do not think the opinion of the Court of Appeals was erroneous in any respect, save one. The practice of permitting counsel to read to the jury, as alleged, the conclusions of courts of last resort upon facts involved in specific eases cannot, be approved. Upon this ground of complaint, as contained in the amendment to the motion for a new trial, I concur in the reversal.
