60 Ga. App. 796 | Ga. Ct. App. | 1939
Lead Opinion
E. H. Thompson brought suit against L. E. Powell Jr. and Henry W. Anderson, receivers of the Seaboard Air-Line Eailway Company, to recover damages caused by the alleged negligence of the defendant. It was alleged, that he was driving his automobile in Cedartown, Georgia, on Second Street, on January 21, 1938; that in order to get to his destination he had to cross the defendant’s tracks; that the approach to the crossing was a rather steep incline; that on his left or eastward his view was obstructed by a warehouse of the Cedartown Yarn Mills and by a string of box-cars which were placed near the street on a side-track of the defendant; that as he approached the crossing he slowed down, and, hearing no train coming, proceeded to mount the incline to the
On the trial the plaintiff testified as follows: “On January 21, 1938, I was going, southward along Second Street in Cedartown, Georgia, towards the old Export Village. There- are about 65 houses over there. To get over to that part of the village south of the tracks I had to cross the Seaboard tracks. I have crossed these tracks several times in the past. There is a sharp incline in the road just before going onto the tracks. There are three tracks at this point. The track from Cedartown runs nearly straight until it reaches a point about 250 feet from Second Street when it turns southward and crosses Second Street on a straight line. According to steps it is 70 yards from Second Street back to the point of the curve. [At this juncture counsel for defendant agreed that the
F. W. Jackson, who lived near the crossing, testified, that he heard the train blow for the Furnace Street crossing, about a quarter of a mile east of the Second Street crossing, and did not pay any more attention until he heard the distress signal some time before the train reached the Second Street crossing; that he never saw any one around the automobile until just before the engine struck, when he saw a man dart around the car back to the north side of the track; that at the time he first saw the car there was sufficient time for the car to have been driven off the track had the motor been running; that the train was stopped immediately after the crash; that he never noticed whether the train cleared the crossing or not; and that he thought the train was stopped as soon as possible.
J. H. Dunbar, engineer for the defendant testified that he was engineer on the train which struck the plaintiff’s car; that the train was about forty minutes late, had six cars of a total length of about 650 feet, including the engine, and was running at the rate of about thirty or thirty-five miles ah hour when he first saw the automobile and put on the emergency brakes; that the bell was ringing and had been ringing all the way from Cedartown, he having turned on the automatic bell-ringer when leaving the depot; that he blew the crossing signal, two longs and a short and a long for Furnace Street, and had started and was still blowing the signal for Second Street when he discovered the automobile on the track, whereupon he blew a distress signal and was still blowing it when the engine struck the automobile; that the car was hurled to the right of the track and completely demolished; that there were six cars in the train, and the fourth car of the train was on the crossing when it stopped; that as soon as he saw the automobile he immediately put the brakes in emergency, and applied sand to the rails, and did everything in his power, after seeing the automobile, to prevent striking it; that after leaving the station and while approaching Second Street crossing he was looking out along the track ahead of the engine all of the time and saw the automobile as soon as the crossing came into view.
B. Holcombe, conductor on the train, testified that at the time he was busy lifting tickets, and did not pay any attention until he heard the distress signal blown and the emergency brakes put on; that he was inside the air-conditioned coach attending to his duties, and would not notice the bell ringing but knew that it was ringing when the train stopped, and he remembered the engineer blowing for Second Street, being attracted to that by the brakes going on; that from the distance in which the train stopped he judged that the speed of the train was twenty-five or thirty miles an hour at the time of the accident; that there were six cars in the train, and the fourth car stopped on the crossing; that he had had many years of experience in train service, and was familiar with the time it takes to stop trains when everything possible is done, and that in his opinion the train in this case was stopped as quickly as possible after the distress signal was blown and the emergency brakes applied. He further testified that there were no cars on the north track next to Second Street, but he did not know whether or not there were any cars on the south track.
O. R. Miller testified, that as a special officer for the Cedartown Yarn Mills he was watching the door to the premises at the time of the accident; that there was one car on the north track and was located about 165 feet from the street; that his attention was first called to the passenger-train when it blew for Furnace Street about a quarter of a mile away, and his attention was next called to it when the train put on brakes and the whistle began to blow a distress signal; that the bell was ringing at the time, and was ringing from the point of the curve to Second Street, a distance of about 250 feet; that the headlight was burning and the bell ringing all the time; that just about the time the engine was passing him he looked west towards the crossing ánd saw an automobile standing on the crossing with the front wheels just over the rail.
C. D. Stone, sheriff of Polk County, testified that when the train
The plaintiff introduced in evidence five photographs showing the Second Street crossing from several positions. The jury returned a verdict, in favor of the defendants. The plaintiff moved for new trial on general and special grounds, and the exception is to the judgment overruling the motion.
The act of 1918 (Ga. L. 1918, p. 212) regulating the operation of railroads, by which the provisions of sections 2675-2677 of the Code of 1910, known as the “blow-post law” were repealed, imposed certain duties upon'the employees of a railway company in the approach of one of its trains to a public railroad crossing, a failure to comply with which constitutes negligence per se. Seaboard Air-Line Ry. Co. v. Benton, 43 Ga. App. 495, 497 (2) (159 S. E. 717). That part of the act in respect to the duty of the employees where a railroad crossing within a municipality is involved is codified (Code, § 94-507) as follows: “Within the corporate limits of cities, towns and villages the said railroad company shall not be required either to erect the blowpost hereinbefore provided for or to blow the whistle of its locomotives in approaching the crossing or public roads in said corporate limits, but in lieu thereof the engineer of each locomotive shall be required to signal the approach of his train to such crossing in said corporate limits by constantly tolling the bell of said locomotive, and on failure to do so the penalties of section 94-9903 shall apply to such offense: Provided further, that nothing in this section contained shall be held to relieve the said engineer or the said railroad company of his or its duty of keeping and maintaining a constant and vigilant lookout along the track ahead of its engine while moving within the corporate limits of said city, town or village, or to excuse such railroad company or such engineer from exercising due care in so controlling the movements of such trains as to avoid doing injury to persons or property which may be on such crossing within said city or within 50 feet of said crbssing on the line of such railway, or for failure to observe any ordinance of such city,
“The requirement in the Code, § 94-507, of certain duties of a railway company within the limits of a municipality, does not relieve it from doing what ordinary care otherwise requires to be done. In fact it is expressly provided in the Code, § 94-508, that 'The enumeration of certain specific duties as in this law expressed shall in no wise be so construed as to relieve any railroad company from any duty or liability which may be imposed upon it by existing laws/ Again, 'Independently of the provisions of the statute regulating the operation of railroad trains on approaching public crossings, there rests upon the railroad company a duty to exercise ordinary care, and a failure of the servants of a railroad company operating its train to give any signal by bell, whistle, or otherwise, or to check the speed of the train on approaching a public crossing, might, in the opinion of the jury, constitute actual negligence, in the light of the surrounding facts and circumstances. Seaboard Air-Line Ry. Co. v. Benton, 43 Ga. App. 495, 497 (159 S. E. 717), and cit. This holding was approved in the same case in 175 Ga. 491, 493 (165 S. E. 593). 'An act or omission may amount to negligence under the particular facts and circumstances, although there is no statute SO' declaring. The fact that the law says that the company shall do certain things at a public road crossing does not mean that the dictates of ordinary prudence might not require the doing of the same or similar things at other crossings used by the public with the knowledge or consent of the company. W. & A. Railroad v. Reed, 35 Ga. App. 538, 540 (134 S. E. 134). 'While specific duties are frequently imposed by statute upon railroad companies with regard to the care which must be exercised at public crossings, they are, even in the absence of specific statutory requirements, bound to exercise reasonable and ordinary care, dependent upon the situation and surroundings of the crossing and the extent of user and commensurate with the danger involved. 52 C. J. 175, § 1769.”. Pollard v. Savage, 55 Ga. App. 470, 474 (190 S. E. 423).
It is clearly apparent from the record that the plaintiff did not prove the alleged grounds of negligence noted above, under (b), (e) and (d). His testimony in these respects was merely negative, he stating: “I didn’t hear any bell or whistle except a distress sig
The first special ground complains that the court erred in refusing a request to give to the jury a certain charge. Without setting out the requested charge, it may be said that it contained quotations from two decisions stating a principle of law involving in part the provisions of § 3675 of the Code of 1910 and § 3333 of the Code of 1895, which provisions have since been repealed by the act of 1918 (Ga. L. 1918, p. 313), as shown in the first division of this opinion. Inasmuch as the portion of the requested charge referring to these repealed Code sections was inappropriate and incorrect, it was proper for the court to refuse the entire request. Grace v. McKinney, 112 Ga. 425 (37 S. E. 737); Thompson v. O'Connor, 115 Ga. 120 (5) (41 S. E. 242); Hardeman v. Ellis, 162 Ga. 664 (26) (135 S. E. 195); Shippey v. Owens, 17 Ga. App. 127 (3) (86 S. E. 407).
The second special ground complains that the court erred in charging the jury: “I charge you, . . if the plaintiff recover at all, he must recover for injuries done by some of the acts of negligence set out in'the petition. I charge you further in that particular, that if the plaintiff could have avoided the injuries that he
The charge to the jury, 'Ghat if you find from the evidence that the Seaboard Air-Line Railway Company or its employees were engaged in the operation of the train as it approached the crossing and collided with the plaintiff’s automobile, yet if you find also from the evidence that the plaintiff did not pxercise ordinary care to discover and avoid the situation that confronted him, he would not be entitled to recover, and you would find for the defendant,” stated a correct principle of law, applicable to the issue made in the present case, and was not error for any reason assigned in the third special ground of the motion for new trial. See Holliday v. Athens, 10 Ga. App. 709 (4) (74 S. E. 67); Moore v. Seaboard Air-Line Railway Co., 30 Ga. App. 466 (9, 10) (118 S. E. 471).
Ground 4 complains that the court erred in charging the jury: “If, after the discovery of a dangerous situation in which the plaintiff might have found himself, if the defendant could have avoided the injury by the exercise of ordinary care and diligence, notwithstanding the negligence of the plaintiff, the defendant would in that event be liable. If the plaintiff could have avoided the injury to his property by the exercise of ordinary care and diligence, then he would not be entitled to recover.” It is contended that the charge failed to place upon the defendant the duty of operating its train at a rate of speed such as to avoid striking the plaintiff’s car at the crossing, did not charge in connection therewith the law
The charge that “If you believe the defendant company was negligent to some extent, and you further believe that the plaintiff was negligent to an equal or greater extent, the plaintiff can not recover in this ease, and your verdict should be for the defendant,” stated a correct principle of law applicable to the issue in the case, and was not error for any reason assigned in ground 5. Pickett v. Central of Georgia Railway Co., 138 Ga. 177 (3) (74 S. E. 1027), and cit.; Central of Georgia Ry. Co. v. Burton, 33 Ga. App. 199 (3) (125 S. E. 868).
Ground 6 of the motion for new trial complains that the court erred in charging the jury that "“If the plaintiff could have avoided the injury to his property by the exercise of ordinary care and diligence, then he would not be entitled to recover,” and “in conjunction therewith” charging: “If you find that both the plaintiff and the defendant were, under the rules of law given you, guilty of some degree of negligence, then you would look to see which contributed the more to the injury and damage done, and then you would lower the damage, if you found the defendant’s negligence exceeded that of the plaintiff in that comparison.” It is contended that, given in connection with each other, the two portions were confusing and misleading, and that there is no explanation as to either, the first not limiting the act of negligence to any particular time, and the second misleading the jury as to calculating the amount of damages in a comparison of respective negligence of the parties. The first-quoted portion of the charge was not given “in conjunction with” the second portion, and as given stated a correct principle of law applicable to the issue in the present case. The
Ground 7 complains that the court erred in charging the jury as follows: “I am requested to charge by the defendant company that the law imposes on the plaintiff the duty of exercising ordinary care to protect himself and his property; and ordinary care, as applied to him, means just that care that every prudent person should have exercised under the same or similar circumstances, and the failure to exercise such care on his part would constitute negligence.” It is contended that this charge intimated an opinion by the court as to what constituted negligence, and was as to a matter of fact which should have been left to the jury for determination, and was argumentative in form; that it charged the jury that the act of going upon the crossing without exercising the care therein stated would constitute negligence; and that it was injurious to the plaintiff, for the reason that the court stated that the charge was being made at the request of the defendant, and was for that reason prejudicial. Where, a requested charge is legal and applicable, it is proper for the court to give it to the jury, and it is not prejudicial as to one party merely because the request is made by the other party and the court incidentally so states.. Nor was the charge objected to subject to the criticism that it intimated an opinion by the court “as to what constituted negligence,” etc. See Metropolitan Railroad Co. v. Johnson, 90 Ga. 500 (5) (16 S. E. 49), where it was held: “A request in this case to charge that ‘the precise thing which every person is bound to do before stepping upon a railroad track, is that which every prudent man would do under like circumstances. If prudent men would look and listen, so must every one else, or take the consequences so far as the consequences might have been avoided by that means,’ was legal and applicable, and should have been complied with.” The charge was not error for any reason assigned.
The court charged the jury: “If you believe from the evidence that the plaintiff’s own negligence, if you find that he was negligent, was the proximate cause of his damage, then in no event could he recover, though you might also find that the defendant
The charge, “You gentlemen have the right to draw upon the composite wisdom and knowledge, experience and observation of the twelve men constituting the jury. In other words, you are expected to use your common sense in reconciling the evidence, in fitting the evidence to the law, and in reaching a verdict. You must use your knowledge of mechanics, of the rapidity with which trains, locomotives, and automobiles travel and can be stopped, your common knowledge. That is the reason you are chosen, because of your superior intelligence and integrity, and that means that you should use your judgment. You should disregard the comments of counsel with reference to each other. Sometimes a lawyer has something in his system that he must get out or bust, but it is not evidence and should have no weight or influence on your minds in reaching your verdict,” was not error for the reason assigned in ground 9, in effect, that it authorized the jury to act upon their private knowledge and opinions as individuals as to facts in issue, and that it was argumentative. The charge was not error for any reason assigned. See, as to the jury applying to evidence their common sense, knowledge, and experience, Broyles v. Prisock, 97 Ga. 643 (6) (25 S. E. 389); Lowry v. Lowry, 170 Ga. 349, 356 (11) (153 S. E. 11); Wallace v. Howard, 58 Ga. App. 428 (198 S. E. 812).
Ground 10 complains that the court erred in charging the jury
Ground 11, complaining that the court failed to charge the doctrine of “last clear chance” to avoid, is without merit, it appearing from the record that the court did so charge as follows: “If after the discovery of a dangerous situation in which the plaintiff might have found himself, if the defendant could have avoided the injury by the exercise of ordinary care and diligence, notwithstanding the negligence of the plaintiff, the defendant would in that event be liable.”
In ground 12 complaint is made that the court failed to state certain contentions of the plaintiff’s petition. The court substantially outlined the plaintiff’s contentions, and stated: “You will have out with you the petition of the plaintiff and the answer of the defendant. These papers are not evidence in any sense of the word, but are given to you so as to give you an idea of just what each side claims, and it is your duty to find the issue one way or the
Judgment affirmed.
Dissenting Opinion
dissenting. I am of the opinion that the charge excepted to in the third ground of the amendment to the motion for new trial was error upon the ground that it in effect instructed the jury that if the plaintiff was negligent in going upon the railroad-track, or was negligent in not discovering the approach of the train before going upon the track, he could not recover, notwithstanding his negligence in going upon the track and in failing to discover the approach of the train may not have been the proximate cause of his injury. The charge.was in the following language: “If you find also from the evidence that the plaintiff did not exercise ordinary care to discover and avoid the situation that confronted him, he would not be entitled to recover, and you would find for the defendant.” The effect of the plaintiff’s exception to this charge was that it erroneously instructed the jury that if the plaintiff was negligent, as stated in the charge, he could not recover, notwithstanding the defendant may have been negligent. This necessarily means that the plaintiff could not recover if he was negligent, notwithstanding his negligence may not have been the proximate cause of the injury. The charge excepted to clearly eliminated, as essential to the bar of plaintiff’s right to recover as the result of his own negligence, the fact that such negligence must be the proximate cause of the plaintiff’s injuiy. The plaintiff could have been negligent in going upon the track and creating the dangerous situation that arose after he went upon the track, and yet be entitled to recover if the negligence.of the defendant was the proximate cause of plaintiff’s injury. Plaintiff’s negligence in going upon the track was not necessarily the proximate cause of his injury.
