Alabama Great Southern R. Co. v. Brown

• Decision Date: 13 June 1912
• Citation: 75 S.E. 330,138 Ga. 328
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. BROWN. SAME v. FRY.
• Court: Georgia Supreme Court

75 S.E. 330

138 Ga. 328

ALABAMA GREAT SOUTHERN R. CO. v. BROWN.

SAME v. FRY.

Supreme Court of Georgia

June 13, 1912

Syllabus by the Court.

The court did not err in refusing to grant a nonsuit.

The court did not err in charging the jury as follows: "When the plaintiffs have shown, if they have, that the personal injury occurred, and the damage to the personal property was done on account of the running of the engine and cars of the defendant company, then the burden of proof would be upon the defendant company to show that it used all ordinary and reasonable care and diligence to prevent the injury, and, if it shows that, then it would not be liable at all; otherwise it would be, provided Brown could not, by the use of ordinary care, have prevented the injury to himself and the property." The charge correctly stated the law, and was applicable to the issue.

The court erred in instructing the jury as follows: "I charge you in this connection that it is the duty of the engineer and fireman to be upon their seats, at their posts of duty, looking ahead, unless otherwise engaged in other duties necessary, ordinary, and usual for the running of the engine and cars, or the train." Whether it was the duty of the engineer and fireman, at the time of the collision with one of the plaintiffs and with the personal property of the other plaintiff, to be upon their seats, was a question of fact for decision by the jury, and should have been left to them for their determination.

The court did not err in charging the jury as follows: "The burden is upon the plaintiff, Brown, in the first instance to show that he was injured and damaged as he contends, and also upon the other plaintiff to show that his property was injured and damaged as he contends. If they have carried that burden, then the burden would be upon the defendant company to show that it used all ordinary and reasonable care and diligence to prevent the injury and damage to plaintiff."

The charge is reference to the law for the ascertainment of damages for permanent injury was wanting in completeness and accuracy.

In the absence of a written request upon the subject, the omission to charge that, if the injury resulted from accident, there could be no recovery, was not such a failure to charge in regard to a distinct and substantive defense as will require the grant of a new trial.

Failure of the court to charge the law applicable to the diminution of damages on account of contributory negligence, and a failure to charge that if the negligence of the plaintiff and the defendant company were equal the plaintiff could not recover, in the absence of pertinent written requests so to charge, is not cause for the grant of a new trial, under the facts of this case.

The other charges of the court complained of were not error for any of the reasons assigned.

Error from Superior Court, Dade County; A. W. Fite, Judge.

Actions by J. P. Brown and by J. W. Fry, respectively, against the Alabama Great Southern Railroad Company. Judgments for plaintiffs, and defendant brings error. Reversed.

Maddox McCamy & Shumate, of Dalton, for plaintiff in error.

Foust & Payne, of Chattanooga, Tenn., for defendants in error.

BECK J.

J. W Fry sued the Alabama Great Southern Railroad Company to recover damages for the killing of a team of horses, and the destruction of a wagon and set of harness, caused by the agents and employés of the railroad company in negligently and recklessly running against and upon the same with an engine and train of cars. He alleged that the engineer and fireman, in the exercise of ordinary care and diligence could have discovered the wagon and horses upon the track in time to stop the train before reaching them, but that they failed to exercise ordinary care in stopping the train and preventing the collision. In the same court J. P. Brown filed suit against said railroad company to recover damages for injuries sustained at the time and place designated in the petition filed by Fry, and alleged that, while driving a team of horses along a public highway near a cut on defendant's railroad, the horses became so frightened and unmanageable on account of the approach of a train designated as No. 1, by reason of the unusual and unnecessary noises made by it and by the escape of steam and blowing of the whistle, the wagon and team and petitioner were carried over an embankment and into a cut on the railroad; that petitioner was rendered partially unconscious and unable to remove himself; that while he and the horses and wagon were in the cut, unable to get out, another of defendant's trains, designated as No. 6, negligently and recklessly ran upon and over petitioner and the horses and wagon, and in the collision petitioner was greatly injured, either by being struck by the engine and cars, or by portions of the horses or wagon or contents of the wagon being knocked against him with force and violence; and that at the point where this collision occurred the public constantly used the tracks and right of way of the defendant as a highway, and this practice was recognized and acquiesced in by the defendant. Upon the trial plaintiff Brown did not ask for a recovery on account of any negligence alleged as to the operation of train No. 1, and the court instructed the jury that under the evidence no recovery could be had on account thereof.

The two cases were tried together. At the conclusion of the evidence on behalf of plaintiffs the defendant made a motion for a nonsuit in the case of Brown, which was overruled, and exceptions pendente lite were filed. The jury returned verdicts in favor of both plaintiffs. A motion for a new trial in each case was overruled, and the defendant excepted.

1. Under the evidence the right of the plaintiff to recover was a question of fact for the jury, and the court did not err in refusing to grant a nonsuit.

2. Complaint is made of the following charge of the court: "When the plaintiffs have shown, if they have, that the personal injury occurred and the damage to the personal property was done on account of the running of the engine and cars of the defendant company, then the burden of proof would be upon the defendant company to show that it used all ordinary and reasonable care and diligence to prevent the injury, and, if it shows that, then it would not be liable at all; otherwise, it would be, provided Brown could not, by the use of ordinary care, have prevented the injury to himself and the property." This charge is a substantial restatement of the provisions contained in sections 2780 and 4426 of the Civil Code, and is not open to the criticism made upon it.

3. The court charged the jury as follows: "Now, as I said before, the plaintiff Brown was a trespasser upon the railroad, whether he so willed it or not, so far as the railroad...