Ga. Ry. &. Power Co v. Shaw, (No. 19192.)

• Citation: 149 S.E. 657,40 Ga.App. 341
• Decision Date: 19 September 1929
• Docket Number: (No. 19192.)
• Court: United States Court of Appeals (Georgia)
• Parties: GEORGIA RY. &. POWER CO. v. SHAW.

40 Ga.App. 341

149 S.E. 657

GEORGIA RY. &. POWER CO.

v.SHAW.

(No. 19192.)

Court of Appeals of Georgia,

Division No. 2.

Sept. 19, 1929.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Suit by L. L. Shaw against the Georgia Railway & Power Company. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Affirmed.

Hugh Burgess, of Decatur, and Colquitt & Conyers, of Atlanta, for plaintiff in error.

Reuben R. & Dowry Arnold and B. P. Gambrell, all of Atlanta, for defendant in error.

STEPHENS, J. L. L. Shaw instituted suit against Georgia Railway & Power Company, to recover damages for personal injuries alleged to have been received by him and caused by the negligence of the defendant in the operation of its street car along its track in a public street in the city of Atlanta, and running into the plaintiff while he was standing by the side of the track engaged in placing things in an automobile which was standing in the street by the side of the street car track. A verdict was rendered for the plaintiff in the sum of $6,500. The defendant made a motion for a new trial upon the grounds that the verdict was without evidence to support it, alleged errors in the charge, and in rulings upon the admissibility of testimony. This motion was overruled, and the defendant excepts.

As counsel for the plaintiff in error in their brief virtually concede that the evidence supports the verdict found for the plaintiff, but insist that, in view of the nature of the evidence and the size of the verdict, the allegederrors could not have been harmless, it is unnecessary to review the evidence or to refer to it otherwise than to state that it presented issues of fact as to the negligence, both of the plaintiff and the defendant, and authorized the inference that the defendant was negligent and that this negligence proximately contributed to the plaintiff's injury, and that the verdict in the amount found for the plaintiff was authorized by the evidence.

1. The court having charged that a presumption of liability arises upon proof that an injury results from the operation of the cars of a railway company, as provided in section 27S0 of the Civil Code of 1910, further stated in the charge as follows: "This presumption of law, gentlemen, is not a conclusive presumption; it is what is known as a rebuttable presumption. That means that upon proof of injury, as stated, it is not conclusive, but may be rebutted by evidence offered by the defendant, or the evidence submitted by the plaintiff; or, from a consideration of all the evidence. If it does appear from the evidence that the agents of the company have exercised all ordinary and reasonable care and diligence, then this presumption would be rebutted, and you would not regard this presumption; but would proceed to consider the case on the allegations of negligence made by the plaintiff and [on] the answer of the defendant. These allegations and the answer form the issue which you are to try." Exception is made to this charge as being error, in that it in effect states that, if this presumption has been rebutted by evidence, to the satisfaction of the jury, that the agents of the defendant had exercised the required care and diligence, this pressumption should be disregarded, and the jury should proceed "to consider the case on the allegations of negligence made by the plaintiff and [on] the answer of the defendant."

In determining whether an excerpt taken from the charge of the court erroneously instructs the jury as to the law of the case, the niceties and the literalities of language must be disregarded, and the excerpt must be construed as conveying to the jury that meaning which the jury must necessarily have understood it to convey. Where the excerpt contains an ambiguous statement as to the law, or is susceptible to two constructions, the sense in which it must have been understood by the jury may be determined in the light of other provisions of the charge.

If the jury must have understood, from the excerpt excepted to, that if they concluded from the evidence that the defendant street railway company, through its agents, had exercised the required care and diligence, then the jury should proceed further to a consideration of the case on the allegations of negligence made by the plaintiff, and the answer of the defendant, the excerpt would have conveyed to the jury an errone ous impression as to the law. If the jury had concluded that the defendant had exercised the required care and diligence, and therefore was not negligent, a verdict for the defendant would have been demanded as a matter of law, and there would necessarily have been no duty resting upon the jury to give any consideration to the allegations of negligence made by the plaintiff, although these allegations may have been supported by the evidence. The jury should find for the defendant. If the charge was understood by the jury as stating that, upon the introduction of evidence which authorized the inference that the agents of the defendant company had exercised the required care and diligence, the presumption of liability which had arisen upon proof that the injury resulted from the operation of the defendant's street car would disappear from the case, and there would then be no presumption against the defendant, it would then have been the duty of the jury to proceed further to a consideration of the case "on the allegations of negligence made by the plaintiff and [on] the answer of the defendant, " as instructed by the court, provided there was any evidence to the contrary which would authorize an Inference that the defendant had failed to exercise the required care and diligence, and was therefore guilty of negligence proximately causing the injury complained of.

The expression "rebutting, " or the "rebuttal" of, a presumption is often used with a twofold signification, one in the sense of establishing to the satisfaction of the jury facts which disprove the presumption, and the other in the sense of the mere introduction of evidence sufficient to contradict the presumption. A rebuttal of the presumption of liability against a railroad company in the former sense would demand a verdict for the railroad company, while a rebuttal of this presumption in the latter sense would not, unless the rebuttal evidence was undisputed and conclusive of the facts, demand a verdict for the railroad company. Where the presumption of liability against a railroad company has in the latter sense been rebutted by the mere introduction of evidence sufficient to contradict the presumption, it would be the duty of the jury to give further consideration to the case upon the allegations of negligence against the company made by the plaintiff, where the evidence introduced in rebuttal did not demand the inference that the defendant had exercised the required care and diligence, or there was evidence from which it could be inferred that the defendant was negligent as alleged by the plaintiff, and that this negligence proximately contributed to the plaintiff's injury.

The fact that a person has been injured by the operation of the cars of a railroad company does not authorize an inference that the damage resulted from the company's neg-ligence, to the exclusion of an inference that the damage resulted from the negligence of the person injured. The presumption of liability for a damage which arises upon proof that the damage resulted from the operation of the cars or locomotives of a railroad company is purely a presumption of law created by statute. "The peculiar effect of [such a presumption] is, " as stated by Prof. Wigmore in his work on Evidence, volume 5 (2d Ed.) § 2491, "merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge's requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury's hands free from any rule." In Greenleaf on Evidence, vol. 1 (15th Ed.) § 33, it is stated that: "The law defines the nature and amount of the evidence which it deems sufficient to establish a prima facie case, and to throw the burden of proof on the other party; and, if no opposing evidence is offered, the jury are bound to find in favor of the presumption." In 22 Corpus Juris, p. 124, § 61, it is stated in the text that: "It is an assumption made by the law that a strong inference of fact is prima facie correct, and will therefore sustain the burden of evidence, until conflicting facts on the point are shown. Where such evidence is introduced, the presumption at law is functus officio and drops out of sight." In Rex v. Almon, 5 Burr. 2686, 2688, Lord Mansfield, in referring to the imprint of the defendant's name upon a libelous publication bought in his shop, says: "This being 'prima facie' evidence of a publication by the master himself, it stands good till answered by him. * * * [It] must stand till contradicted or explained or exculpated by some other evidence, and if not contradicted, explained or exculpated, would be in point of evidence sufficient or tantamount to conclusive." In Smith v. Asbell, 2 Strob. (S. C.) 141, 147, it is stated that: "Presumptions * * * are artificial rules which have a legal effect independent of any belief, and stand in the place of proof until the contrary be shown." In Mockowlk v. Kansas City, etc., R. Co., 196 Mo. 550, 571, 94 S. W. 256, 262, it is stated that "presumptions have no place in the presence of the actual facts disclosed to the jury, " and quoting from another that "presumptions * * * may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts." In Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136,...