Atl. Coast Line R. Co v. Wells

• Citation: 52 S.E.2d 496
• Decision Date: 10 February 1949
• Docket Number: No. 32255.,32255.
• Court: United States Court of Appeals (Georgia)
• Parties: ATLANTIC COAST LINE R. CO. v. WELLS.

52 S.E.2d 496

ATLANTIC COAST LINE R. CO.

v.WELLS.

No. 32255.

Court of Appeals of Georgia,

Division No. 2

Feb. 10, 1949.

.

Syllabus by the Court.

1. Special grounds 1, 2 and 3 require no reversal for the reasons given in the corresponding division of the opinion.

2. There is no merit to the exceptions to the charge of the court for the reasons given in the corresponding division of the opinion.

3. The verdict is not excessive, under the record in this case.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by J. R. Wells against Atlantic Coast Line Railroad Company, for injuries. To review an adverse judgment, defendant brings error.

Judgment affirmed.

J. R. Wells, whom we shall call the plaintiff, sued the Atlantic Coast Line Railroad, whom we shall call the defendant, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The petition alleged, briefly, that the plaintiff was an engineer for the defendant on one of the defendant's trains being run from Sebring, Florida, to Sanford, Florida. As the train rounded a curve near Campbells, Florida, travelling at a speed of about 45 or 50 miles per hour and being operated on the main line of the track of the defendant, the train being operated by the plaintiff came in sight of another train standing on the track at a distance of about 500 feet away. The plaintiff had no previous knowledge that the standing train was just ahead of him. He immediately applied the emergency brakes on the train, but could not stop his train before it ran into the standing train. When the plaintiff saw that the collision was imminent, in order to save his life he jumped from the engine which he was operating to the roadway below and in jumping he received the injuries set out in his petition. His suit was for $100,000 damages. The negligence alleged was that the flagman and conductor on the standing train did not perform their duty in protecting the back end of the standing train from the train and engine being operated by the plaintiff. The plaintiff set out in his petition that he was an able bodied man before the injuries which he received, 47 years of age and capable of and was earning at the time $450.00 per month from his labors as an engineer. He alleged that his expectancy was approximately 20 years and that from the injuries, he had suffered great physical and mental pain and that he would continue to suffer pain the remainder of his life because of his injuries. He alleged that his injuries were permanent in character; by reason of the injuries which the plaintiff received he would never be able to follow his profession of railroading again.

The defendant in its answer as amended admitted negligence and admitted substantially all of the other allegations of the plaintiff's petition except as to the extent of the injuries which the plaintiff received. The defendant, further answering, said: "Further answering said petition this defendant states that it has at all times been ready and is now ready and willing to pay the plaintiff for the full time lost between December 4, 1946, the date of the injury,, and October 1, 1947, the date on which the defendant avers plaintiff was able to return to work, such time amounting to $4,070.00, such amount to be supplemented by a reasonable award for pain and suffering, such award to be fixed by the jury trying this, case under appropriate instructions to be given by this honorable court." The case proceeded to trial. The jury returned a verdict in favor of the plaintiff for $37,-800.00. The defendant filed a motion for a new trial on the usual general grounds and thereafter amended the motion for a new trial on six additional grounds. The court overruled the motion as amended, for a new trial. On this judgment the defendant assigns error here.

In addition to the general grounds as stated, the amended motion contains six special grounds. In the brief and argument of counsel for the defendant the case is discussed under three main heads: (a) Special grounds 1, 2, and 3 are treated together assigning error on the refusal of the court to admit in evidence a certain letter which the plaintiff wrote to the defendant's claim agent, P. H. Wyatt. (b) Special grounds 4 and 5 of the amended motion allege error by reason of the trial court's failure to charge properly on the meaning of the words "permanent disability." (c) Special ground 6 of the amended motion and the general grounds of the motion are argued together and raise the question that the verdict is excessive.

Alston, Foster, Sibley & Miller and Wm. B. Spann, Jr., all of Atlanta, for plaintiff in error.

T. J. Lewis, Richard M. Maxwell, and B. P. Gambrell, all of Atlanta, for defendant in error.

GARDNER, Judge.

1. In special ground 1 the letter which the court refused to allow in evidence against the demand of the defendant is as follows: "Mr. P. H. Wyatt, Claim Agent, Sanford, Flordia. Dear Sir: "After consulting with Dr. Fort at Jacksonville yesterday, August 26th, and from what he told me concerning my injuries, I feel that I will be able to return to work on October 1, 1947.

"While I will not be completely well and in my opinion will never be, as both my feet are still giving me plenty of trouble as Dr. Fort said my arches have fallen and that I should wear made to order shoes, also my neck has arthritis which makes it very stiff and sore and I still have to take aspirin.or sleeping capsules, two or three times a week to get some rest. Dr. Fort said he could not say what caused the arthritis or when it started, but I know that I was not bothered until after the wreck on December 4, 1946. I do know that I had to lay out on the cold wet ground in a light sprinkle, at Campbell, about 45 minutes, before I was carried to the hospital. I have been bothered with a stiff neck since and according to Dr. Fort, there is nothing that can be done about it. He said my neck had the stiffness of a man fifteen years older than I am.

"Due to the fact that I feel that my

feet and neck and maybe my back later on, will always cause me trouble and that I have suffered severe pain and will have to lose many days work in the future caused by this accident, and that the accident was caused by an inexperienced man that had been reported the trip before by the same conductor as not being safe and that the company takes the blame in Mr. Windham's bulletin No. 7542 of January 13, 1947--1 hereby ask the Atlantic Coast Line Railroad Company for the sum of $10,000 to be paid as compensation for pain and suffering, wages for time lost not to be considered, as I will waive the wages if the $10,000 is paid, as stated. Also, Article No. 57 of the Relief Department not to enter in. Also, all doctors and hospital bills to be paid by the company from December 4, 1946 to October 1, 1947.

"I do not feel that I am asking too much as I have given the Company 28 years of my life, am now only 48 and had I been killed or lost a limb the sum would have been much more. I also ask the Company that if I see that I can not work regularly due to this accident, that they will not stand in my way for a pension on disability.

"Yours very truly, (s) J. R. Wells."

In special ground 2 of the amended motion error is assigned because the court disallowed the same letter when offered in evidence with the figures showing the amount of the proposed compromise deleted by the defendant. Special ground 3 of the amended motion assigns error because the court excluded from the evidence the first sentence of the letter without offering the remainder of the letter. The Code, section 38-408, provides as follows: "Admissions obtained by constraint, or by fraud, or by drunkenness induced for the purpose, or admissions or propositions made with a view to a compromise, are not proper evidence." The Code section to which reference is made seems to be very broad and excludes the introduction in evidence of propositions with a view to compromise and also admissions made with a view to compromise.

The evidence reveals that the plaintiff and the claim agent had for some time prior to writing the letter, several discussions regarding the contention of the plaintiff and a settlement with him. After this the plaintiff wrote the letter in question in longhand and requested the claim agent to type it and send it in. This the claim agent did. When the claim agent Wyatt was on the stand testifying on behalf of the defendant, he said, according to the record: "This letter was written after he [meaning the plaintiff] had seen Dr. Fort [Dr. Fort being a physician of the defendant company], but that wasn't his first visit. I had been discussing the settlement of his case. He wrote the letter in pencil, brought it to me and asked me if I would type it off and I did. No, we never did get together on a settlement. I made numerous visits to him, and he to me at my office." It will thus be seen that according to the evidence of the claim agent the defendant and the plaintiff had been negotiating for a settlement and had been discussing the plaintiff's physical condition as to when he would be able to return to work. At the time the letter was written the plaintiff had not entered suit and of course the defendant had not filed its answer. After the plaintiff did enter suit the defendant then filed the further answer, as above quoted verbatim. We call particular attention in this connection to the portion of the further answer: "Defendant states that it has at all times been ready and is now ready, to pay the plaintiff for the full time lost between December 4, 1946, the date of the injury, and October 1, 1947, the date on which the defendant avers that the plaintiff was able to return to work * * * such amount to be supplemented by a reasonable award for pain and suffering, such award to be fixed by the jury trying this case. * * * "It will be further noted in this connection...