Ansley v. Atlantic Coast Line R. Co., 34016

Citation71 S.E.2d 434,86 Ga.App. 152
Decision Date06 May 1952
Docket NumberNo. 34016,No. 2,34016,2
PartiesANSLEY v. ATLANTIC COAST LINE R. CO. et al
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court.

1. Grounds 1 through 7, inclusive, of the amended motion for a new trial show no cause for the grant of a new trial for reasons set forth in the corresponding divisions of this opinion.

2. In the second grant of a new trial the discretion of the trial court is not so ample as in the first grant thereof, and must be exercised with caution, as the presumption of the legality of such grant weakens upon each concurrent verdict. Where there have been three jury verdicts on substantially similar evidence in favor of the plaintiff, and such verdicts are authorized by the evidence, the trial court abused its discretion in granting the motion for a new trial a second time.

J. H. Ansley sued the Atlantic Coast Line Railroad Company for personal injuries and damages to his automobile resulting from a collision between his car and one of the defendant's trains within the city limits of Harlem, Georgia, on December 17, 1949. The case has been tried three times, and has each time resulted in a verdict for the plaintiff. After the first verdict the trial court granted a new trial; the second verdict and judgment were reversed by the Court of Appeals, see Atlantic Coast Line R. Co. v. Ansley, 84 Ga.App. 89, 65 S.E.2d 463; and the appeal here is from the judgment of the trial court granting a new trial after the third verdict in favor of the plaintiff.

The defendant offered no evidence upon the trial of the case. The testimony of the plaintiff's witnesses was substantially a follows: that the intersection upon which the collision occurred was a heavily traveled highway in the middle of the business section; that the railroad right of way had no visual signal or cross bar, and that there was no bell ringing or other signal; that vision was obscured by buildings and a box car, and it was impossible for either the engineer or persons crossing the track to see what was approaching until about 15 feet from the tracks; that the train blew its whistle one time while approaching the crossing; that it was traveling between 35 and 50 miles per hour in violation of a city ordinance; that it was a cold morning, the plaintiff had his windows up, and he did not hear the whistle; that the crossing was equipped with a crossing bell, but the bell frequently did not ring and no witness heard it ring that morning; that the plaintiff was familiar with the crossing; that he approached it at a speed of about 15 miles per hour, and when 15 feet from the track he saw the train, which was then 50 feet away, and the engineer saw him at the same time; that he accelerated his car, believing he had a better chance to get across the tracks than to attempt to stop, and at the same time the engineer braked the train; that the train hit the left rear of the car, turning it over, and stopped only after the engine and fifteen cars had crossed the track. The plaintiff had no broken bones. He suffered from shock; had his back and body taped up and remained in bed for a week, and has since the collision suffered pain in his back. He is a farmer by occupation and his earning capacity has been impaired, in that he was previously able to do hard manual labor for six days a week but at the present time, if he works two days, he is forced to rest and lose the next day from work. He farmed 22 acres in 1949, 11 acres in 1950 and 11 in 1951. The reasonable market value of his automobile was $1,000 at the time of the collision, and was nothing afterward.

The jury returned a verdict of $7,500 in favor of the plaintiff. The motion for a new trial, containing the general grounds and 8 special grounds, was granted without any specification as to which grounds the trial court considered meritorious, and the granting of this motion is assigned as error.

Randall Evans, Jr., Thomson, for plaintiff in error.

Stevens & Stevens, Thomson, for defendants in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. Since the judgment of the trial court granting the motion for a new trial fails to designate upon which ground or grounds of the motion as amended the judgment is predicated, the special grounds of the amended motion for a new trial are first considered.

In special ground 1, complaint is made as to the charge to the effect that the plaintiff contended that 'defendant has damaged him in the sum of $10,000 for the value of his automobile, compensation for his personal injuries and as punitive damages', it being contended that punitive damages are not designed to compensate the plaintiff but to deter the wrongdoer from repeating the trespass. Elsewhere in his charge the judge instructed the jury fully on the subject of punitive damages, and it is apparent, considering the charge as a whole, that the jury could not have been misled into believing they could award punitive damages merely as compensation for the loss.

2. While it is the better practice not to superimpose right-of-way questions on the issue of liability in cases of this kind, see Atlantic Coast Line R. Co. v. Green, 84 Ga.App. 674, 67 S.E.2d 184, 188 the charge that neither the train nor the automobile 'automatically had the right of way over the other' does not constitute harmful error. Ground 2 of the amended motion is without merit.

3. It was not error, as contended in special ground 3, to charge that failure of an engineer to slow down a train at a public crossing may amount to negligence, and that this was a question for the jury under the facts of the case. See Georgia Northern Ry. Co. v. Rollins, 62 Ga.App. 138, 140, 8 S.E.2d 114; Montgomery v. Southern Ry. Co., 78 Ga.App. 370 (1-b), 51 S.E.2d 66.

4. The charge that one approaching a railroad crossing is not as a matter of law negligent in running over the crossing unless he is aware of the approach of a train was correct, as held in Callaway v. Cox, 74 Ga.App. 555, 557, 40 S.E.2d 578; Collier v. Pollard, 60 Ga.App. 105, 108, 2 S.E.2d 821. Nothing to the contrary is held in Coleman v. Western & A. Ry., 48 Ga.App. 343(4), 172 S.E. 577, which deals with negligence in fact. Special ground 4 is without error.

5. The excerpt from the charge complained of in special ground 5, is to be found in Hertz Drive-Ur-Self Stations, Inc., v. Benson,...

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6 cases
  • Wright v. Dilbeck
    • United States
    • Georgia Court of Appeals
    • July 2, 1970
    ...over the crossing unless he is aware of the approach of a train' has been hedl to be a correct charge in Ansley v. Atlantic C.L.R. Co., 86 Ga.App. 152, 154, 71 S.E.2d 434, although the authority cited therein does not sustain the ruling. In our opinion, if the charge is intended to apply to......
  • Blanchard v. Westview Cemetery, Inc.
    • United States
    • Georgia Court of Appeals
    • October 8, 1974
    ...exercised with caution, as the presumption of the legality of such grant weakens upon each concurrent verdict.' Ansley v. Atlantic C.L.R. Co., 86 Ga.App. 152(2), 71 S.E.2d 434. The appellant cannot complain of what might happen in the event of the judge's refusal to certify, since he did ce......
  • Selman v. Manis
    • United States
    • Georgia Court of Appeals
    • September 28, 1959
    ...contained in the cross-bill of exceptions. The distinction between general and special exceptions is found in Ansley v. Atlantic Coast Line R. Co., 86 Ga.App. 152, 71 S.E.2d 434, that a general assignment alleges without specifically designating the reason for the conclusion that the verdic......
  • Jackson v. Motors Ins. Corp.
    • United States
    • Georgia Court of Appeals
    • April 23, 1958
    ...him by the jury. Therefore, the exception is to the second grant of a new trial for the defendant. 2. In Ansley v. Atlantic Coast Line R. Co., 86 Ga.App. 152, 155, 71 S.E.2d 434, 437, in considering the duty of the appellate courts in reviewing the grant of a second or third new trial to th......
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