Alabama Great Southern R. Co. v. McBryar

• Decision Date: 19 June 1941
• Docket Number: 28986.
• Citation: 15 S.E.2d 563,65 Ga.App. 153
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. McBRYAR.
• Court: Georgia Court of Appeals

15 S.E.2d 563

65 Ga.App. 153

ALABAMA GREAT SOUTHERN R. CO. v. McBRYAR.

No. 28986.

Court of Appeals of Georgia, Division No. 2.

June 19, 1941

[Copyrighted Material Omitted]

R Carter Pittman, of Dalton, and McClure, McClure & Hale of Trenton, for plaintiff in error.

J. M. C. Townsend, of Chattanooga, Tenn., for defendant in error.

SUTTON Judge.

John McBryar brought suit against the Alabama Great Southern Railroad Company to recover damages for injuries sustained by him by the alleged negligent acts of the defendant while he was in the act of alighting as a passenger from the defendant's train after it reached the plaintiff's destination. It was alleged that the defendant was negligent in that after it stopped the train it did not wait a sufficient time for him to alight, and that as he was going down the steps of the train it was suddenly and violently jerked by the defendant, and that he was thrown violently to the ground and sustained certain described injuries. It was further alleged that the defendant was negligent in failing to remove from the steps snow and ice which had accumulated thereon. In alleging that the defendant suddenly and violently jerked the train while the plaintiff was in the act of alighting from the steps the petition charged that such negligence was the sole and proximate cause of his injury. Later in the petition it was alleged that the defendant was negligent in not stopping the train a sufficient length of time to permit the plaintiff to alight in safety. This allegation was made by amendment during the course of the trial.

1. The court submitted to the jury all of the acts of alleged negligence, and it is contended in special ground one of the amended motion for new trial that the court erred in so doing, in that the plaintiff did not allege that such other acts of negligence were the proximate cause of his injuries, and that he is committed, as to recovery, exclusively to the allegation with respect to the sudden and violent jerking of the train, which he alleged as the "sole" and proximate cause of his injuries. The original petition concluded with the statement that "the injuries and damages herein sued for are the direct and proximate cause [sic] of the defendant company, its officers, agents, and employees as alleged in this petition." While such expression is inexact as to charging that the injuries of the plaintiff were directly and proximately caused by the negligence of the defendant as alleged, no special demurrer was filed thereto, and a reasonable construction placed thereon is that thereby is meant that the injury and damages sued for are the direct and proximate result of the defendant's negligence as alleged in the petition. In other words, the negligence alleged is the direct and proximate cause of the plaintiff's injury and damage. So, properly construed, the petition alleges in its recitals of the manner in which the train was suddenly and violently jerked that such negligent act was the sole and proximate cause of the plaintiff's injury and damage, but at its conclusion charges that all of the acts of alleged negligence were the direct and proximate cause of the plaintiff's injury and damage. This is not an instance where, as shown by cases cited by the plaintiff in error, the plaintiff plants his case solely on one act of negligence, and could not recover because of some negligence shown by the evidence but not declared upon, but is a case where notwithstanding the use of the word "sole" as to one act of alleged negligence it is shown that he really relies upon all of the acts of negligence set out in the petition. Consequently, in the absence of a special demurrer calling upon him to make more exact his allegations which are relied upon as showing negligence constituting the direct and proximate cause of his injury and damage, the use of the word "sole" in one part of the petition should not reasonably and in justice militate against him so as to deprive him of his subsequent general allegation that all acts of negligence alleged in the petition were the direct and proximate cause of his injury and damage. For this reason we do not think that the court erred, as contended, in submitting to the jury the issue whether or not the defendant was negligent in failing to stop the train a sufficient length of time to permit the plaintiff to alight in safety from the steps.

It is of no consequence that in amending the petition and setting up such allegation of negligence the plaintiff did not also allege that it was the direct and proximate cause of his injury and damage. After being amended the petition was the same as if the allegation mentioned had been in the petition in the first place, and the general allegation at the conclusion of the petition applies equally to that pleaded act of negligence. See in this connection Chestnut v. Weekes, 180 Ga. 701, 180 S.E. 716.

There is an additional reason why the court did not err in submitting to the jury other alleged acts of negligence in addition to the alleged negligent act of suddenly and violently starting the train. Even if it should be held that the plaintiff should be restricted to the allegation of negligence in respect to the sudden and violent starting of the train, because of the use by him of the word "sole," in connection with the "proximate cause" of his injury and damage, "Negligent conduct of the defendant, if a part of the res gestæ of the transaction in which the plaintiff is injured, though not the proximate cause thereof, may be alleged and proved in connection with the negligent acts of the defendant through which the injury did directly occur." Charleston & W. C. Ry. Co. v. Camp, 3 Ga.App. 232(1), 59 S.E. 710. See also Palmer Brick Co. v. Chenall, 119 Ga. 837, 845, 47 S.E. 329.

2. The defendant set up the defense with respect to the allegation of negligence in permitting the accumulation of snow and ice on the steps of the train, that such condition was an act of God; that at the time there was a snow storm in progress and snow accumulated upon all surfaces of the train except perpendicular surfaces, and that the plaintiff had the same opportunity as the defendant's employees to discover the presence of the snow and ice. The court charged the jury the definition of an act of God and that the burden was upon the defendant to prove such affirmative defense, and in connection therewith gave the following instruction, as to which error is assigned by the plaintiff in error in special ground two of the motion for new trial as placing upon it a burden not required by the law: "That the defendant exercised extraordinary care in the discharge of its duty and did not in any way alleged fail to exercise such care to do any reasonable act that might have avoided the loss or injury alleged." This objection is well taken. The obligation of the defendant to prove its alleged affirmative defense of an act of God causing the snow and ice to be upon the steps did not include also the burden of disproving all of the negligence alleged by the plaintiff. The failure of the defendant to show to the satisfaction of the jury that the presence of the snow and ice upon the steps was free from human agency and solely an act of God would still leave in the case issues as to the other alleged acts of negligence on the part of the defendant, and it was the duty of the plaintiff, and not that of the defendant, to prove such allegations by a preponderance of the evidence. While the act of 1929 (Ga.L.1929, p....