10 S.E.2d 457 | Ga. Ct. App. | 1940
Lead Opinion
The evidence supported the verdict, and the court did not err in overruling the motion for new trial.
The defendant demurred generally and specially. The court overruled the demurrers, and the defendant excepted pendente lite. The defendant denied the allegations of negligence and injury, and for further plea insisted that any injury that arose to the plaintiff "was caused by his own carelessness and failure to exercise any degree of care whatsoever in approaching said railroad crossing, in that had he merely turned his head or cast his eye to the west, as he approached this railroad crossing at any point from 100 feet south of said crossing, that he would have been able to have seen defendant's passenger-train approaching from the north, and that had plaintiff's car been equipped with good and serviceable brakes, and had he not been traveling at a dangerous and reckless rate of *173 speed in excess of twenty-five miles per hour, he could have applied said brakes and brought his automobile to a stop before reaching said tracks," and that "the plaintiff was guilty of negligence per se, which proximately contributed to his injury in operating his automobile upon Hamilton Street in the City of Dalton in excess of twenty-five miles per hour, in violation of a valid city ordinance." The trial resulted in a verdict of $2000 for the plaintiff. The defendant moved for a new trial. The court overruled the motion, and the defendant excepted, assigning error only on the general grounds. The defendant prosecuted no assignment of error on the ruling of the court on the demurrers.
Under the insistence of able counsel for plaintiff in error, the assignment of error suggests in effect a number of queries, in a consideration of which will lie the merit of the assignment. First, was the negligence of the defendant established? Second, was the comparative negligence, if any, of the plaintiff sufficient to bar, as a matter of law, the plaintiff's recovery? Third, could the plaintiff in the exercise of ordinary care, as a matter of law, have avoided the negligence of the defendant when it became apparent, or, in the exercise of ordinary care, should have become apparent? Fourth, was the testimony of the plaintiff as a witness so vague, equivocal, and self-contradictory as to bar, as a matter of law, the plaintiff's recovery? Fifth, was the testimony of the plaintiff as a witness, that he did not see the train in time to have avoided, in the exercise of ordinary care, the negligence of the defendant, so incredible, impossible, or inherently improbable as to bar, as a matter of law, the plaintiff's recovery? Sixth, were not all the questions raised for the determination of the jury, on whose verdict must rest the judgment of this court? In reviewing the assignment of error the court must consider all questions in the light of the following rules: The presumption is that the verdict was based on a fair consideration of all matters presented to it. McCullough v. Clark,
1. In considering the first query we think that the facts of the case were not open to the question whether the injuries of the plaintiff were caused solely by his own negligence. There was evidence to the effect, and the jury was authorized so to find, that the plaintiff, approaching the crossing at a speed of fifteen to twenty miles per hour, applied his brakes on seeing the train, and stopped his car completely. Up to this point the plaintiff had sustained no injury; it was by the impact of the train that the injuries arose, and without that ensuing, subvening agency the plaintiff would have remained without injury. Upon the question whether the negligence of the defendant was established, the evidence demanded a finding, on the testimony of the defendant's agents, that the train was running in excess of the limit fixed by the ordinance, and accordingly that the defendant was chargeable with negligence per se. Beyond that, the evidence of the plaintiff authorized a finding that the speed of the train, running fifty-five minutes late, was moving fifty-five to sixty miles an hour, over a much-used crossing in a city of 11,000 population, about 6:45 o'clock in the early morning that was half-dark, rainy, misty, and foggy, and at the time of morning when factory whistles were accustomed to blow their morning notices to their employees; and that the train approached the crossing around a curve, without the assistance of a crossing watchman or electric warning device, and without ringing the bell. The negligence of the defendant was established, and conclusively as to negligence per se. The injury having been proved, on the evidence of the plaintiff a prima facie case of negligence arose. CityCouncil of Augusta v. Hudson,
2. "The doctrine usually referred to as that of contributory negligence is not the law of this State, inasmuch as that term, properly used, expresses not such negligence as would diminish, but only such negligence as would preclude a recovery. The doctrine which here obtains can be and is more accurately and properly designated as that of comparative negligence." Centralof Georgia *175 Railway Co. v. Larsen,
3. "The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. In such cases and in such cases only does the failure to exercise ordinary care to escape the consequences of negligence entirely defeat a recovery." Western Atlantic R. Co. v. Ferguson, and Central Railway Co. v.Larsen, supra. The failure of the plaintiff to use ordinary care "to avoid the consequences of the defendant's negligence after it was or should have been apprehended would constitute matter for defense, to be pleaded by the defendant, unless affirmatively shown by the allegations of the petition" (Watts v. ColonialStages Co.,
4. Consider now the question whether the testimony of the plaintiff was so vague, equivocal, and self-contradictory as to bar, as a matter of law, his recovery. The rule is: "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. . . And he `is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.'" Southern RailwayCo. v. Hobbs,
5. Was the testimony of the plaintiff as a witness that he did not see the train in time to avoid the negligence of the defendant so incredible, impossible, or inherently improbable as to bar, as a matter of law, the plaintiff's recovery? "Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which can not be impeached by man, even though speaking under the sanction of an oath." Patton v. State,
It clearly appears from this testimony that the plaintiff was basing all the facts to which he testified on opinions conceived out of swiftly-moving objects and events, on a semi-dark, misty, and rainy *180 morning, and not on careful, deliberate measurements taken with scientific instruments. It was the province of the jury to consider them in the light of all the circumstances, taking into consideration the credibility of the witness, and whether he was impeached by his evidence on a former trial, and in the light of other considerations such as it failing to appear to what extent the rate of speed of the car was diminished by the braking force when the brakes were applied ten or fifteen feet from the tracks, or what fraction of time, if any, elapsed after the car had come to a stop and until it was struck by the side of the engine, or how much the train had slowed before the impact, if any, or to what extent the car further traveled, in excess of the ten or fifteen feet, after the brakes were applied, when it cut to the right and moved toward the tracks but in a circular direction, or what the increase of time was for the greater distance circularly traveled, or to what extent the wet street lessened the time of braking the car, or the degree of visibility of the early morning, or other differential impossible for this court to determine. Therefore this evidence of the plaintiff as a witness is not so incredible, impossible, or inherently improbable as to demand, as a matter of law, that he did in fact see the train in time to stop the car and avoid the negligence of the defendant. Fallacy would arise in the assumption by this court that all such estimates, cast out of human agency and made on a half-dark, misty, and rainy morning, were correct orabsolute. All of these matters were for determination by the jury. Furthermore, this evidence of the plaintiff was not germane to the establishment of his cause of action under the allegations of the petition, but rather to the question whether it supported the defendant's defensive plea, that had the plaintiff looked as indicated he could have stopped the car and avoided the result of the defendant's negligence. The jury resolved this issue against the defendant.
6. All questions raised were for the determination of the jury, and, under the issues, ultimately to determine whether the negligence of the plaintiff or of the defendant was the proximate cause of the injury, and whether the negligence of the plaintiff contributed to the injury, affecting the quantum of the verdict.
Judgment affirmed. MacIntyre, J., concurs. Broyles,C. J., dissents.
Dissenting Opinion
Conceding that the evidence showed *181
that the railroad company was guilty of some acts of negligence in the operation of its train on the occasion in question, I think that the evidence as a whole demanded a finding that by the exercise of ordinary care the plaintiff could have avoided the consequences to himself of that negligence. It is well settled that "the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. . . And he `is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.'"Southern Ry. Co. v. Hobbs,
Let us view the plaintiff's testimony in the light of the above stated ruling. The undisputed evidence showed that Hawthorne Street was three hundred and four feet north of Hamilton Street; that there were no obstructions to prevent a person from seeing the entire railroad track from Hamilton Street to Hawthorne Street, when that person was fifty feet, or a hundred feet, from the crossing on Hamilton Street. The plaintiff testified that his eyesight was good, and that when he was fifty feet from the crossing he *182
looked up the track as far as Hawthorne Street and saw no train. If that were true, the train had not then reached Hawthorne Street. He testified that his automobile was proceeding at a speed of about eighteen miles an hour, and that when he was ten feet from the crossing, the train had just reached the crossing. It follows that the train ran three hundred and four feet while the automobile was going forty feet; and a simple mathematical calculation shows that the automobile covered the forty feet in less than two seconds, and that the train must have been running at a speed greater than one hundred miles an hour. The highest rate of speed that any witness testified that the train was running was sixty miles an hour. It follows as a mathematical fact that when the plaintiff was fifty feet from the Hamilton Street crossing the train must have reached Hawthorne Street, and that if he looked up the track to that street, as he said he did, he must have seen the train, and could have avoided the collision by applying the brakes and stopping his car. He testified that his brakes were in good condition and that he could have stopped his car "within ten or fifteen feet." Therefore, under the ruling that a party offering himself as a witness in his own behalf "is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him," the verdict in this case is contrary to law. The testimony of the plaintiff that he looked and did not see the train is contradicted by the undisputed mathematical fact that he must have seen it if he looked, and must yield to that fact. "Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which can not be impeached by man, even though speaking under the sanction of an oath." Patton
v. State,