Lead Opinion
We turn first to the trial court’s sustaining of the defendant’s demurrers to allegations in the petition of provisions of an ordinance of the City of Atlanta (Code of the City of Atlanta, 1953, § 48.2) and of negligence per se based on defendant’s violation thereof. The ordinance provides: “Sec. 48.2. Protection at grade crossings to be provided. It shall be the duty of every person operating trains across grade crossings in the City to provide at each such grade crossing complete public safety from danger from approaching trains for all persons using the streets at such crossings. For this purpose persons operating trains or having control of the tracks shall place and keep at each such grade crossing at all times a watchman or flagman, or shall install, operate and maintain standard automatic gates or signaling devices, sufficient to protect the public fully from the danger of an approaching train . . . sec. 48.3. Operation over unprotected grade crossings prohibited. No train shall be run across any grade crossing where adequate provision, as required by the preceding section has not been made for the protection of human life.” (Emphasis supplied). By its demurrers the defendant questioned whether the ordinance is repugnant to the Constitution of the United States and the. Constitution of the State of Georgia for the reasons discüsse.^ infra.
The defendant contends, first, that the ordinance makes the railroad company an insurer of the safety of others, contrary to general law which only requires railroads to exercise ordinary care.
The meaning of some of the language in the ordinance is not plain; it does not have an exact or concrete meaning. The language, therefore, needs interpretation. Phillips v. State,
In determining the meaning of the ordinance, the court must be guided by recognized rules of statutory construction. An ordinance “intended to promote the public safety . . . should receive a reasonable and practical interpretation to that end.” Smeltzer v. Atlanta Coach Co.,
The phrase “provide at each such grade crossing complete public safety,” and the requirement that the device provided shall be “sufficient to protect the public fully from the danger of an approaching train,” must be given a reasonable and sensible construction, which will, if possible, carry out the intention of the legislative body, and render the statute valid. Strickland v. State,
“Safety”—defined in Webster’s New International Dictionary as “freedom from danger”'—and “protect” are not absolute but relative terms. If we should interpret “complete public safety”, and “fully protect” as absolutes, we would have to say the ordinance places an impossible requirement on railroads. Danger to human life from approaching trains can have causes other than acts and omissions of the railroad and beyond the control of the railroad, e.g., the acts or omissions of the person endangered or of someone else who puts him in peril of a train. We must reject the impossible construction of the terms and give
We believe the legislative body intended in using “complete” and “fully” to emphasize that the ordinance affirms and gives force locally to the duty imposed on railroads by general law, to its full extent; and intended to prescribe definitely that within its jurisdiction the maintenance and operation of specified warning devices at grade crossings is necessary to a full and complete compliance with this legal duty.
The second sentence of the ordinance, stating that “for this purpose” the railroad shall do certain things, refers back to, qualifies, and makes specific the duty, mentioned in the first sentence, to provide complete public safety. The language italicized above in the second sentence requires that the warning device used shall be sufficient in kind, and shall be operated long enough before the train enters the crossing, to- attract the attention of and enable persons exercising due care for their own safety to stop before entering the crossing.
We must gather the intention of the legislative body from the ordinance as a whole. Erwin v. Moore,
We do not agree that the ordinance makes the railroad com
We realize that, since the ordinance is pleaded and will be before the jury; an instruction by the court will be needed to enable the jury to apply it correctly. We hold that the ordinance does not impose on railroads a duty greater than the duty of ordinary care required by State law. It does require railroads at grade crossings within the City of Atlanta to have in action, always for a time long enough before a train enters a crossing to enable people to stop before the train reaches the crossing, a man or device giving plainly visible signals that are adequate to give warning that a train is approaching.
The defendant contends also that the ordinance requires of railroads something that is unreasonable, arbitrary and unnecessary. The authorities do not support this contention. Statutes requiring railroads to provide reasonable safety measures do not deny due process of law. Minneapolis &c. Railway Co. v. Beckwith,
The defendant further contends that the ordinance is too vague, general, and indefinite to put the railroad on notice of the character of signal device that should be furnished by the railroad at a public crossing.
“In order that a statute may be held valid, the duty imposed by it must be prescribed in terms definite enough to serve as a guide to those who have the duty imposed upon them ... In determining whether a statute is void for uncertainty, the statute should be considered as a whole.”
The trial court erred in sustaining the defendant’s demurrers to the allegations in the petition setting out the provisions of the ordinance of the City of Atlanta and allegations of negligence per se based thereon.
The trial court sustained defendant’s demurrers to the following allegations of the petition: “20(e) As a result of his injuries, petitioner is physically unable to perform accustomed assistance in the home in caring for his invalid wife who is a helpless paralytic, unable to move about or minister to herself as a normal person and this inability on petitioner’s part causes him great mental distress.” The grounds of the demurrers were that the allegations do not constitute a basis of damages recoverable by plaintiff; that they improperly attempt to plead
In related assignments of error, on the overruling of Grounds 13 and 14 of his motion for new trial, the plaintiff contends that the trial court erroneously excluded evidence offered to show elements of his pain and suffering. The plaintiff proposed to prove by his own and his wife’s testimony that before the accident he played with his five children and helped his wife look after them and did as much with them as she did; he helped his wife in and out of bed and to go to the bathroom, would come home during the day and put her in a wheelchair and take her outside to get sunshine and take her back in; that he would grab her if she fell; that he would roll her to the table; that since the accident he can do none of these things, is ill and indifferent with the children, can’t stand to hear the baby cry and for the children to make a fuss.
Evidence or allegations as to the domestic circumstances of the plaintiff in an action for the recovery of damages for a personal injury are generally held to be improper for the reason that they are irrelevant and immaterial. Central R. v. Moore,
It is also “a familiar principle that when a physical injury has been sustained the person injured may recover for mental suffering caused by or growing out of his bodily hurt.”. Brush Electric Light &c. Co. v. Simonsohn,
While the fact that the plaintiff had an invalid wife and five children, standing alone, does not constitute a basis of damages recoverable by the plaintiff, the plaintiff’s mental distress resulting from his inability to care for his invalid wife and to care for and play with his five children, caused by or growing out of his bodily injury, was a proper element of damage—pain and suffering.
Defendant’s demurrer on the ground that the above quoted allegations, of paragraph 20 (e), are an attempt to plead evidence is without merit. This pleading is not of the kind that has been held objectionable as evidentiary matter. Martin v. Greer,
The court erred in sustaining defendant’s demurrers to paragraph 20 (e) of the petition and in overruling Grounds 13 and 14 of the motion for new trial.
We will next consider the assignment of error on the trial court’s overruling of plaintiff’s demurrers to allegations of defendant’s answer that at the time of the collision plaintiff was driving a taxicab for hire and carrying two passengers for hire; and that plaintiff was negligent per se in failing to stop and do the things required by the Georgia Law set forth in Code Ann. § 68-1663, which provides that the driver of a motor vehicle for hire, before crossing the “tracks of a railroad shall stop such vehicle within 50 feet but not less than 15 feet from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train . . . and shall not proceed until he can do so safely.” The grounds of plaintiff’s demurrers were that the statute allegedly violated was “intended for the sole protection of passengers for hire in a motor vehicle being driven for hire and was not intended to apply” to the defendant in this case, and that therefore the allegations were irrelevant and prejudicial to plaintiff.
In Georgia and elsewhere, it has been long recognized that, before a party can invoke as negligence per se in his behalf the violation of a statute requiring or prohibiting certain conduct, it must appear that he is within the class for whose benefit the statute was passed. Platt v. Southern Photo Material Co.,
The principle applies when a defendant seeks to establish
The Georgia statute which the defendant seeks to invoke provides: “The driver of any motor vehicle carrying passengers for hire, or of any school bus carrying any school child, or of any vehicle carrying explosive substances or flammable liquids as a cargo or part of a cargo, before crossing at grade any track or tracks of a railroad, shall stop such vehicle within 50 feet but not less than 15 feet from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train, and for signals indicating the approach of a train, except as hereinafter provided, and shall not proceed until he can do so safely. . .” Ga. Laws 1953, Nov.-Dec. Sess., pp. 556, 594 {Code Ann. § 68-1663). Other sections of the statute require all vehicles to stop when there is an electric signal, or flagman giving warning, a lowered gate, a train approaching in hazardous proximity, or a stop sign erected by State or local authorities in accordance with the statute. Ga. L. 1953, Nov.-Dee. Sess., pp. 556, 593-594 (Code Ann. §§ 68-1661, 68-1662).
The duty placed on the drivers of vehicles carrying passengers ■for hire is stricter than that placed on drivers of vehicles not mentioned in § 68-1663, and is even stricter than the duty placed on drivers of vehicles for hire when they are not carrying passengers for hire. Since the driver of a vehicle for hire is regulated by § 68-1663 only when he is carrying a passenger, and is left under the general regulation of § 68-1661 when he is not carrying a passenger, it appears that the duty imposed on the driver by § 68-1663 is for the protection of his passengers.
In a number of foreign jurisdictions, the violations of statutes identical or similar to Code Ann. § 68-1663, by drivers of trucks carrying flammable cargo or trucks of common carriers, have been held negligence per se, both when the violation was by the defendant sued (Essam v. New York, N. H. & H. R. Co.,
In accord with the Georgia precedents cited above, we hold that the failure to comply with the provisions of Code Ann. § 68-1663, by the plaintiff driver of a vehicle for hire, while carrying a passenger for hire, was not negligence per se as to the defendant railroad.
The trial court erred therefore, in overruling plaintiff’s de
The question remains whether the statute has any relevance to the transaction in question so as to allow it to be pleaded. Though there is authority and logic for the contrary view, it seems to be settled in Georgia that the failure of a party to obey a statute that is related to or capable of having a causal connection with the transaction in dispute, is admissible in evidence and may be considered by the jury in passing on the question whether there was or was not negligence, though the violation of the statute would not of itself be negligence. Atlanta &c. Ry. Co. v. Gravitt,
In some Georgia cases we find language indicating that, unless a statutory violation is negligence per se, it has no application at all. Central of Georgia Ry. Co. v. Griffin,
The overruling of plaintiff’s demurrers Nos. 1 and 2 to defendant’s answer, and the overruling of Grounds 4(a) and 5(a) of plaintiff’s motion for new trial, were not error for the reasons assigned.
Grounds 7 and 8 of plaintiff’s motion for new trial complain of certain instructions given by the court, on the ground that they applied to both ordinary negligence and negligence per se, and were erroneous as to negligence per se.
The instruction complained of in Ground 7 was to the effect
We agree that this instruction would not correctly apply to negligence per se. As it stood in context with the other points in the charge, it applied only to ordinary negligence and was not erroneous.
The charge complained of in Ground 8 was that if the plaintiff “shows by the evidence that some one or some of said acts were the proximate cause of the injury complained of and that the defendant was negligent therein, then the plaintiff would be entitled to recover. . . (Emphasis supplied). This instruction was given between instructions explaining what was negligence per se and those explaining what was ordinary negligence. The words italicized above could be given interpretation that would make the instruction properly apply to ordinary negligence only, and it is not absolutely clear from the charge that the instruction was so restricted. We think it would be well for the court to emphasize it in some manner when an instruction applies only to one or the other class of negligence. Giving the jury credit for ordinary intelligence, however, we do not think either of these instructions as given was confusing and prejudicial to the plaintiff, and hence neither was reversible error. Savannah, Thunderbolt &c. Ry. Co. v. Beasley,
The trial court did not err in overruling Grounds 7 and 8 of the motion for new trial.
In Grounds 9 and 10 plaintiff complains of an instruction to the jury to the effect that, even if they found the railroad’s failure to maintain a signaling or safety device to be negligent, such negligence should not be found to be the proximate cause of plaintiff’s injuries if the plaintiff was familiar with the crossing and had knowledge that there was no safety device there. It is true that if plaintiff was familiar with the crossing and knew there was no safety device there, this knowledge would place upon plaintiff the duty to exercise ordinary care to avoid the consequences of defendant’s negligence in not maintaining a safety device; and if the plaintiff failed to exercise such care he
The trial court erred in overruling Grounds 9 and 10 of the motion for new trial.
The charge complained of in Ground 11 of plaintiff’s motion for new trial involves the rule preventing plaintiff from recovering in the event he could by the exercise of ordinary care have avoided the consequences of defendant’s negligence; the rule preventing the plaintiff from recovering in the event his own negligence was the sole cause of his injuries; and the rule permitting plaintiff to recover partially for his injuries in the event the negligence of both plaintiff and defendant contributed to causing plaintiff's injuries and the defendant’s negligence was greater than plaintiff’s (comparative negligence). These rules are derived from two different chapters of the Georgia Code. Code Ann. § 105-603: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” Code Ann. § 94-703: “No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to him.” They are all applicable in a suit against a railroad (Wrightsville &c. R. Co. v. Gornto,
The court instructed that, in order for the plaintiff to be entitled to a reduced recovery in the event the plaintiff and defendant both were negligent, the jury must find that the plaintiff’s negligence was “less than failure to exercise ordinary care.” In our opinion this is not a correct statement of the law, though we find the following cases that appear to approve such a statement: Central R. & Bkg. Co. v. Dixon,
In the language of many cases the comparative negligence rule entitles the plaintiff to recover when “the plaintiff was less negligent than the defendant,” or “the defendant w'as more negligent than the plaintiff,” or “the defendant’s negligence was of a greater degree” than the plaintiff’s, e.g., Rich’s, Inc. v. Townsend,
Georgia at an early time abandoned the common lawrule that if a plaintiff wms negligent at all he was barred from recovery. For the common law rule Georgia substituted the comparative negligence rule, which changed plaintiff’s duty to protect his own safety from an absolute duty to the duty to exercise ordinary care. Macon &c. R. Co. v. Johnson,
It has been held error to charge the “avoidance of consequences” rule (Code § 105-603) and in immediate connection therewith the “apportionment of damages” rule (§ 94-703 and the last sentence of § 105-603) in such manner as to qualify the former by the latter, and “'without making the proper explanation as to the class of cases to which this latter charge is applicable.” Americus, Preston &c. R. Co. v. Luckie,
The problem presented here can best be explained by setting out the various steps that the jury must follow in the event they find that the defendant was negligent. They must first decide whether by the exercise of ordinary care the plaintiff could have avoided the consequences to himself of defendant’s negligence. Taylor v. Morgan,
The trial court erred in overruling Ground 11 of the motion for new trial.
Judgment reversed as to orders discussed in Divisions 1, 2, 3, 7 and 8 of opinion. Judgment affirmed as to orders discussed in Divisions 4, 5 and 6 of opinion.
Lead Opinion
On Plaintiff’s Motion for Rehearing
The plaintiff questions our holding that the failure to obey a statute may be considered by the jury, along with all the other facts of the case, as a circumstance in determining whether or not a party was negligent, even though the statutory violation would not of itself alone constitute negligence. In this holding we followed Atlanta &c. Ry. Co. v. Gravitt,
The Gravitt case, in Division 4 of the opinion, held that a violation of the blow-post law was not negligence per se as to a person walking upon a railway track on a trestle not at a public crossing. At pages 391 and 392 the opinion (Division 4) stated that the Holmes case was the “first distinct announcement” on the question, had not been overruled, was made by a full bench (3 Justices), and was still in force. The Supreme Court followed the Holmes case in the Gravitt case in holding that the statutoiy violation was not negligence per se; and stated that proof of the statutory violation without any other evidence authorizing a finding of negligence, would not render the railroad liable (p. 409).
The Gravitt case held also, in Division 6 (p. 409), that the failure to obey the statute, when a part of the res gestae, is admissible in evidence and may be considered by the jury in passing upon the question whether the defendant was negligent relative to the person injured. The court cited several earlier cases so holding; some of these were full-bench decisions and some not.
It is true the language of the Holmes opinion is broad: “ . . . the accident having occurred elsewhere [than at a public crossing], the provisions of this act [blow-post law] are not applicable.” But it is obvious that the Gravitt opinion interprets the Holmes case as having decided only that the statutory violation was not negligence per se, and that it interprets the Holmes case as having not decided that the statutory violation was not relevant as evidence of negligence. The Gravitt decision was by a full bench' of five Justices. This court cannot rule against it either as to the meaning of the Holmes case or as to the relevance of a statutory violation in a transaction in which the injured party was not one within the intended protection of the statute.
Motion for rehearing denied.