32 Ga. App. 551 | Ga. Ct. App. | 1924
C. L. Wessinger recovered a verdict for $15,000 against the Southern Bailway Company in an action under the Federal employer’s liability act, and the company has excepted to the overruling of its motion for a new trial.
The plaintiff was a fireman on a freight-engine referred to in the record as No. 4567, and claims to have been injured in Green-ville, South Carolina, immediately following a run from Atlanta, while he was attempting to “thump” the engine, under'orders from the engineer, that the latter might discover the location of certain troubles or defects which were indicated by noises and knocks in the engine en route. It appears in the record that the act of thumping an engine is accomplished by applying the brakes, and then giving the_ engine steam and putting it in gear. It is shown that an engineer, when standing upon the ground and observing the engine as it attempts to run while thus held fast by the brakes, may detect, in a measure, its condition as to the existence of certain defects. The plaintiff says that when, in undertaking to thump the engine as directed, he had pulled the reverse lever, it suddenly jerked forward, snatching him with it, and causing him to strike the lever and the boiler-head, with the result that he was injured as alleged. He claims that the behavior of the lever was caused by certain worn and defective parts, and that in respect of these the defendant was negligent. The defendant admitted the plaintiff’s employment, together with facts which would render the employer’s liability act applicable if liability existed. In other respects the answer was a general denial. '
In ground 1 of the amendment to the motion for a new trial the defendant contends that the court erred in admitting certain testimony of one Skipper, whom the plaintiff had offered as an expert for the purpose of showing hypothetically the cause of the behavior of the lever. The particular engine was equipped with the Walcheart gear. The plaintiff’s attorney propounded a question which would have elicited an answer as to the cause of the jerking of the lever on the particular engine with the particular gear. The defendant interposed an objection that the witness was not an expert, and further that he had previously testified that
Error is assigned upon the following excerpt from the charge of the court: “That law further says that in all actions hereinafter brought against any such common carrier by a railroad, under and by virtue of any of the provisions of this act, .to recover damages for personal injuries to an employee, the fact that the employee may have been guilty of contributory negligence shall not bar recovery, but the damages shall be diminished by the jury in .proportion to the amount of negligence attributable to such employee. Now if this plaintiff shows that he was injured by the alleged negligence of the defendant, or one of the allegations of negligence, then if it shall appear to you that the plaintiff was negligent, but that his negligence was not the sole cause of the injury, then he may recover; if the evidence convinces you that he was negligent to some .extent, but not amounting to bringing about the sole cause of the injury, then he would still be entitled to recover, if he was guilty of some negligence, but you ought to diminish the amount you allow him, in proportion as his negligence was made to appear.” It is urged that this charge is error for the reason that the court “failed to instruct the jury with respect to the question of damages, that in diminishing the amount of the recovery in proportion to the amount of negligence attributable to such employee, this was with relation to the total negligence of both the employer and the employee.” This does not state the assignment in full, but comprehends its substance.
This ground of the motion might be disposed of under the rule that it is not a good assignment of error on a portion of the judge’s charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given (Smith v. Duhart, 152 Ga. 554 (3), 110 S. E. 301); but, regardless of this rule of practice, we entertain the opinion that the court’s charge as a whole, in the absence of appropriate request, sufficiently informed the jury that if the defendant was liable, but if the plaintiff was contributorily negligent, he could not recover “full damages, but only a proportional amount, bearing the .same relation to the full amount as the negligence attributable to the
The rule upon this question, under the employer’s liability act of this State (Ga. L. 1909, p. 160), contemplates the proportionate diminution of the plaintiff’s damages where he is eontributorily negligent, by a comparison of the negligence of the plaintiff with the negligence of the defendant. Ga. & Fla. Ry. Co. v. Newton, 140 Ga. 463 (79 S. E. 142); Pickett v. Central of Ga. Ry. Co., 138 Ga. 177 (74 S. E. 1027, Ann. Cas. 1913C, 1380); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 417 (91 S. E. 517). It is quite clear that the Georgia rule requires a greater diminution of the recovery on account of the plaintiff’s concurring negligence, and we could hardly say that the defendant would be injured if the court had not explained fully the Federal rule. Indeed, in the Earnest case, 229 U. S. 114, supra (the principal authority cited in support of this ground of the mption), it appears that the charge excepted to instructed the jury that the contributory negligence of the plaintiff would go “by way of diminution of damages in proportion to his negligence as compared to the negligence of the defendant.” The court said that these words were not happily chosen, but were possibly “not prejudicial to the defend
In ground 7 an instruction upon the subject of the credibility of the witnesses is complained of. It is urged that, the court having failed to define “preponderance of evidence,” and having failed to give in charge the rule with reference to the credibility of witnesses as contained in the Civil Code, § 5732, the excerpt as given was “calculated to mislead the jury into the belief that they would determine the case according to the rule propounded by the court, rather than determine where the preponderance of the evidence lay.” It is not alleged that the rule as given by the court on the subject of the credibility of witnesses was incorrect, even though it may not have been in the language of the code section, or identical therewith in principle. One who would set aside a verdict and judgment must show error, and none here is even alleged.
Ground 9 alleges that the court did not charge the jury with reference to the burden of proof and the preponderance of evidence, and failed to charge the jury the meaning of the legal preponderance of evidence, as contained in the Civil Code, § 5731. A reference to the charge of the court discloses that the court did instruct the jury quite fully upon the burden of proof; and there was clearly no error in failing to give in charge the code section mentioned, in the absence of a timely written request. See Ga. &c. Ry. Co. v. Lasseter, 122 Ga. 679 (6) (51 S. E. 15); Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (3) (71 S. E. 887).
Error is assigned in ground 6 upon a charge that if the plaintiff “was injured by sickness that occurred before the injury, the defendant would not be liable at all for that; but if a man was sick and the defendant did anything wrongfully by which his condition was aggravated, the jury might consider that, but of course it would be subject to the consideration of what his condition was before he was injured.” It is insisted by the plaintiff in error that the charge was not warranted either by the pleadings
The court charged the jury as follows: “If a man is entitled to have a verdict for a certain amount of money for lost capacity to earn money in the future, why the verdict would give him the money all at once. That is to say, if he was allowed so much a year at the end of any particular period, — like five, ten, fifteen, or twenty years, or any other period, — you would give him all the money at once; and it is worth more to a man to have it all given to him at once than to pay it to him along in the future. To give him five dollars to-day would be worth more to him than to cause him to wait five years and give him so much money each year. So if any amount is allowed him for permanent impairment of his capacity to labor and earn money, that ought to be reduced to its present value, and the rate of reduction to its present value is seven per cent., that being the regular rate of interest in this State.” It is assigned that this charge intimated an opinion by the court that the plaintiff had suffered a permanent impairment of his capacity to labor and earn money, but we cannot'agree that it is subject to this objection.
It is insisted further, however, that the charge “was calculated to mislead the jury into the belief that the reduction, instead of
If this defense was involved under the evidence, it was so only by the testimony of the plaintiff himself; and it may be true that ■in'such a case the defendant would be entitled to a charge of the law ápplicable thereto without a special plea of the defense (New York &c. R. Co. v. Vizvari, 126 C. C. A. 632 (2), 210 Fed. 118, L. R. A. 1915C, 9; Atlantic Coast Line R. Co. v. Tomlinson, 21 Ga. App. 704 (2 b), 94 S. E. 909); but the rule would perhaps be otherwise if the defense does not appear in the plaintiff’s testimony, because it is provided in our Civil Code, § 5636, that “under a denial of the allegations in the plaintiff’s declaration, no other defense is admissible except such as disproves the plaintiff’s cause of action; all other matters in. satisfaction or avoidance must be specially pleaded.”
The defense of assumed risk is founded in the common law. The Federal employer’s liability act merely saves it, with, certain modifications. New York &c. R. Co. v. Vizvari, supra; Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (6) (34 Sup. Ct. 635, 58 L. ed. 1062); Jacobs v. Southern Railway Co., 241 U. S. 229 (36 Sup. Ct. 588, 60 L. ed. 970); Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U. S. 310 (36 Sup. Ct. 564, 60 L. ed. 1016); Boldt v. Pennsylvania R. Co., 245 U. S. 441 (38 Sup. Ct. 139, 62 L. ed.
Whether or not it should be pleaded in' order to be availing would depend upon the local rules of practice. Central Vermont Ry. Co. v. White, 238 U. S. 507 (4) (35 Sup. Ct. 865, 59 L. ed. 1433, 1436); Chesapeake & Ohio Ry. Co. v. DeAtley, supra. Whether the defendant can justly complain of the court’s failure to charge upon the law applicable to such a defense without having specially pleaded it, we are satisfied that this ground of the motion does not present a sufficient cause for setting aside the verdict, for two reasons. First, the assignment is too general. It should have been more specific in reference to the particular principle which the court should have charged in order that the trial judge could himself have intelligently corrected the error, if any existed, 'when he passed upon the motion for a new trial. There are two rules of law applicable to the defense of assumption of risk to an action under the Federal employer’s liability act, depending upon the nature of the risk assumed; and the court below was not informed, nor is this court, as to which of these rules the plaintiff in error would deem to be involved under the evidence. One rule is applicable where the risk is normally and necessarily incident to the employment. In the absence of a special contract the servant assumes such ordinary risk, without qualification. The other rule has reference to extraordinary hazards, which the servant does not assume until he has notice thereof, unless the dangers arising therefrom are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them. The negligence of the master or of the fellow servant is included within the latter class. See Civil Code (1910), § 3131; Chicago &c. Ry. Co. v. Ward, 252 U. S. 18 (2) (40 Sup. Ct. 275, 64 L. ed. 430); Seaboard Air-Line Ry. v. Horton, supra; Boldt v. Pennsylvania R. Co., supra; Duffey v. Consolidated Black Coal Corp., supra. As to
The second reason why we think that the ground of the motion here considered is without merit is founded upon a total absence of evidence involving the question of assumption of risk. The plaintiff alleged and testified that on the run from Atlanta to Green-ville the engine made loud and unusual noises and knocks, and said in his testimony that it appeared that the engine would shake to pieces. Irrespective of whether, if some accident had happened while the engine was thus running, the occurrence would have been one of which the plaintiff would possibly have had sufficient warning, the run was completed without a mishap and the arrival in Greenville accomplished in safety. There was no evidence whatsoever that the jerking of the lever with such violence as would likely be attended with danger was a normal occurrence or one ordinarily incident to its manipulation in the manner undertaken by the plaintiff at the time he alleges he was injured. Its action appears to have been unusual, and the hazard resulting therefrom' extraordinary, of which the plaintiff could not have been found to have assumed the risk, in the absence of evidence that the danger was known to him or was so obvious that an ordinarily careful person under the circumstances would observe and appreciate it. See Central Vermont Ry. Co. v. White, Chicago &c. Ry. Co. v. Ward, and Sparta Oil Co. v. Russell, supra. Thus we do not discover any error in ground 11.
It is- contended that the verdict was excessive. It appears that at the time of the alleged injury the plaintiff was 26 years of age, earning between $175 and $200 per month. There was some evidence tending to show that at the trial he was in a desperate physical condition, practically if not totally disabled; that his disability will in all probability be permanent, and that it was caused by the occurrence of which he complains against the defendant. The testimony of the plaintiff himself was supported by that of a physician; and while there was evidence introduced on the part of the defendant, including that of several physicians,
It is further contended on the part of the plaintiff in error that there is no evidence of the negligence of the defendant as alleged, and that the verdict is therefore unsupported. We recognize the rule that in a case of this sort no presumption arises that the. defendant was negligent -merely from proof that the plaintiff was injured by the operation of the appliance, but that the burden is on him to bring evidence to establish that the defendant was negligent in one or more of the ways alleged in the petition. The-fact, however, that the lever, as testified to by the plaintiff, gave a sudden and unusual jerk by which he was injured, is some evidence of such negligence, the occurrence- being one, as some of the evidence tended to show, which would not have happened if the defendant had discharged its duty of care. The jury were authorized to apply the maxim res ipsa loquitur and, from the circumstances to which we have alluded, to infer that the defendant was negligent as alleged. See Bonita Theatre v. Bridges, 31 Ga. App. 798 (122 S. E. 255), and citations; Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 S. E. 1087).
The plaintiff in error insists that this maxim cannot be applied in cases arising under the Federal employer’s liability act, but we cannot concur in the position taken. In Great Northern Ry. Co. v. Wiles, 240 U. S. 444 (36 Sup. Ct. 406, 50 L. ed. 732), the court said: “The application of the doctrine to cases like that at bar is disputable [citing Patton v. Texas & Pacific Ry. Co., 179 U. S. 658 (21 Sup. Ct. 275, 45 L. ed. 361); Looney v. Metropolitan R. Co., 200 U. S. 480, 486 (26 Sup. Ct. 303, 50 L. ed. 564)]. We,- however, do not have to go farther than to indicate the dispute.” It is not clear to us whether by this language the court intended reference to the case as 'one arising under the employer’s liability act, or merely as one falling under the general law of master and servant. The Patton and Looney cases both arose prior to April 22, 1908, the date of the passage of the liability act. They were referred to again in Minneapolis & St. Louis R. Co. v. Gotschall, 244 U. S. 66 (37 Sup. Ct. 598, 61 L. ed. 995), in which the court virtually recognized that
To examine further into the evidence: the witness Skipper attributed such unusual jerking of a lever (such as injured the plaintiff in this case), “on most any engine,” to some of the defects which the plaintiff alleged as negligence. While this witness was unacquainted with the Walcheart gear, with which the engine in question was equipped, and while it would appear that the testimony of numerous witnesses introduced by the defendant for the purpose of rebutting Skipper’s testimony had in contemplation this type of gear, none of the defendant’s proof can be said to have conclusively established that the Walcheart gear would not cause a behavior on the part of a lever, in case there were defects of the
If, consistently with the testimony of Skipper that the jerking of the- lever would be generally indicative of defective appliances, the defendant had shown by positive, unequivocal, and unimpeached testimony that there was yet, Without question, an exception in the ease of the Waleheart gear, we should think, as a matter of law, that the evidence of the particular,witness was rebutted; but such is not the case. There was in the testimony of the various witnesses no comparison of the operation or control of the 'W’aleheart gear with that of any other type of gear.
“ ‘Prima facie evidence’ is such evidence as in judgment of law is sufficient, and if not rebutted remains sufficient. It may, in addition to other ways, be rebutted by developing additional undisputed facts consistent with its truth, but tending to an opposite conclusion.” Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (12) (118 S. E. 435). See Ga. R. &c. Co. v. Smith, 83 Ga. 626 (6) (10 S. E. 235); Gainesville & Dahlonega Ry. Co. v. Austin, 127 Ga. 120 (5) (56 S. E. 254). It is possible for an effort at rebuttal by the method just stated to succeed as a matter of law (compare Neill v. Hill, 32 Ga. App. 381, 123 S. E. 30), but where the method adopted is merely an attack upon the truth or trustworthiness of the evidence sought to be rebutted (Ga. R. &c. Co. v. Smith, supra), the success or failure of the effort is ordinarily, if not always, to be determined only by the finding of the jury.
There was no direct testimony of such a character as to conclusively rebut the inference of negligence which the jury were authorized to draw from the violent and unusual jerking of the lever, under the circumstances detailed in the testimony of the plaintiff. See Whiddon v. Hall, 155 Ga. 57 (6) (118 S. E. 347); Redd v. Lathem, 32 Ga. App. 214 (123 S. E. 175). Furthermore, the engineer in charge of the particular engine testified: “If the engine was in good fix and a man was thumping it, like I said, and had steam in the cylinders, it would not jump forward. I have never seen one shoot forward. I could not say an engine would do it out of fix. I never saw one do it. I have never seen one do that. If it would do that I would say that it was out of
The plaintiff introduced as a witness one Mitchem, the defendant’s back-shop foreman, in. charge of its “wrecking shop,” who testified that the engine did not come into the shop until twenty-two days after the alleged accident. He furnished a list of the repairs then made, and testified that none of them had to do with the reverse lever, and that “there was nothing wrong . . that would cause the reverse lever to jerk in any unusual way.” The plaintiff was not bound by every fact testified to by this witness, although introducing him. “While a party cannot [as a general rule] impeach his own witness, he may nevertheless contradict his testimony and show that the facts are different. Civil Code [of 1895], § 5290 [Civil Code of 1910, § 5879]; Skipper v. State, 59 Ga. 63; Christian v. Macon &c. R. Co., 120 Ga. 314, 317 (47 S. E. 923).” Carter v. Martin, 7 Ga. App. 216, 219 (66 S. E. 630). There was a sharp issue of veracity between the plaintiff and this witness upon a material point, so that from this fact alone, the credibility of this witness became a question for the jury. While there was much testimony, on behalf of the defendant that the lever could not have jerked as the plaintiff claimed, whether there were defects or not, it cannot be said that the jury were not authorized to find from the evidence as a whole tha/t the lever did jerk, and that the cause of its jerking was the negligent condition of certain mechanisms as alleged. “A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty'to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.” Sappington v. Bell, 115 Ga. 856 (42 S. E. 233).
The evidence of negligence may have been slight; but this court cannot set aside the verdict because it may think the preponderance was in favor of the defendant. It was said in the Patton case, supra,.that “where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation
We cannot hold that the verdict is unsupported, and, in view of the several rulings made above, we conclude finally that the trial judge did not err in overruling the motion for a new trial.
Judgment affirmed.